CHAPTER 336 Department of Labor

Department of Labor

336.010. Definitions for chapter.

As used in this chapter, unless the context requires otherwise:

  1. “Secretary” means secretary of the Labor Cabinet; and
  2. “Cabinet” means Labor Cabinet.

History. 1599c-4: amend. Acts 1984, ch. 414, § 8, effective July 13, 1984; 2005, ch. 123, § 32, effective June 20, 2005; 2010, ch. 24, § 1699, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Burrow v. Kapfhammer, 284 Ky. 753 , 145 S.W.2d 1067, 1940 Ky. LEXIS 577 ( Ky. 1940 ).

336.015. Labor Cabinet — Organization and personnel — Responsibility of secretary — Agencies attached for administrative purposes.

  1. The secretary of the Labor Cabinet shall have the duties, responsibilities, power, and authority relating to labor, wages and hours, occupational safety and health of employees, child labor, workers’ compensation, and all other matters previously under the jurisdiction of the Department of Labor.
  2. The Labor Cabinet shall consist of the Office of the Secretary, the Department of Workers’ Claims, and the Department of Workplace Standards.
  3. The following agencies are attached to the cabinet for administrative purposes only:
    1. Kentucky Occupational Safety and Health Review Commission;
    2. State Labor Relations Board;
    3. Workers’ Compensation Funding Commission;
    4. Occupational Safety and Health Standards Board;
    5. Employers’ Mutual Insurance Authority; and
    6. Workers’ Compensation Nominating Committee.

HISTORY: Enact. Acts 1984, ch. 414, § 3, effective July 13, 1984; 1987 (Ex. Sess.), ch. 1, § 1, effective January 4, 1988; 1992, ch. 13, § 11, effective July 14, 1992; 1994, ch. 181, § 2, effective April 4, 1994; 1998, ch. 579, § 3, effective July 15, 1998; 2001, ch. 5, § 1, effective June 21, 2001; 2005, ch. 123, § 33, effective June 20, 2005; 2010, ch. 24, § 1700, effective July 15, 2010; 2017 ch. 3, § 4, effective January 9, 2017; 2017 ch. 80, § 24, effective June 29, 2017; 2017 ch. 83, § 3, effective June 29, 2017; 2018 ch. 31, § 4, effective July 14, 2018; 2019 ch. 173, § 3, effective June 27, 2019.

336.020. Departments of Workplace Standards and Workers’ Claims — Offices in Labor Cabinet.

  1. The Department of Workplace Standards shall be headed by a commissioner appointed by the Governor in accordance with KRS 12.040 and shall be divided for administrative purposes into the Division of Occupational Safety and Health Compliance, the Division of Occupational Safety and Health Education and Training, and the Division of Wages and Hours. Each of these divisions shall be headed by a director appointed by the secretary and approved by the Governor in accordance with KRS 12.050 .
  2. The Department of Workers’ Claims shall be headed by a commissioner appointed by the Governor, and confirmed by the Senate in accordance with KRS 342.228 . The department shall be divided for administrative purposes into the Office of Administrative Law Judges, the Division of Claims Processing, the Division of Security and Compliance, the Division of Workers’ Compensation Funds, and the Division of Specialist and Medical Services. The Office of Administrative Law Judges shall be headed by a chief administrative law judge appointed in accordance with KRS 342.230 . Each division in the department shall be headed by a director appointed by the secretary and approved by the Governor in accordance with KRS 12.050 . The Workers’ Compensation Board shall be attached to the Department of Workers’ Claims for administrative purposes only.
  3. The Office of General Counsel for the Labor Cabinet, the Office of Administrative Services, and the Office of Inspector General are attached to the Office of the Secretary of the Labor Cabinet.
    1. The Office of General Counsel for the Labor Cabinet shall be headed by a general counsel appointed by the secretary with approval by the Governor in accordance with KRS 12.050 and 12.210 . (4) (a) The Office of General Counsel for the Labor Cabinet shall be headed by a general counsel appointed by the secretary with approval by the Governor in accordance with KRS 12.050 and 12.210 .
    2. The Office of General Counsel shall be divided for administrative purposes into the Workplace Standards Legal Division and the Workers’ Claims Legal Division.
    3. Each legal division shall be headed by a general counsel appointed by the secretary with approval by the Governor in accordance with KRS 12.050 and 12.210.
    1. The Office of Administrative Services shall be headed by an executive director appointed by the Governor in accordance with KRS 12.040 . (5) (a) The Office of Administrative Services shall be headed by an executive director appointed by the Governor in accordance with KRS 12.040 .
    2. The Office of Administrative Services shall be divided for administrative purposes into the Division of Fiscal Management, the Division of Human Resources Management, the Division of Information Technology and Support Services, and the Division of Professional Development and Organizational Management. Each division shall be headed by a director appointed by the secretary and approved by the Governor in accordance with KRS 12.050 .
  4. The Office of Inspector General shall be headed by an executive director appointed by the Governor in accordance with KRS 12.040 .

HISTORY: 4618-111, 474g-4: amend. Acts 1942, ch. 19, § 2; 1966, ch. 255, § 252; 1984, ch. 414, § 9, effective July 13, 1984; 1987 (Ex. Sess.), ch. 1, § 2, effective January 4, 1988; 1994, ch. 181, § 3, effective April 4, 1994; 1998, ch. 579, § 4, effective July 15, 1998; 2002, ch. 246, § 6, effective July 15, 2002; 2005, ch. 123, § 34, effective June 20, 2005; 2010, ch. 24, § 1701, effective July 15, 2010; 2017 ch. 80, § 25, effective June 29, 2017; 2017 ch. 82, § 2, effective June 29, 2017; 2017 ch. 83, § 4, effective June 29, 2017; 2017 ch. 134, § 2, effective June 29, 2017; 2018 ch. 31, § 5, effective July 14, 2018; 2019 ch. 146, § 55, effective June 27, 2019; 2019 ch. 173, § 4, effective June 27, 2019.

Legislative Research Commission Notes.

(6/27/2019). This statute was amended by 2019 Ky. Acts chs. 146 and 173, which are identical and have been codified together.

Research References and Practice Aids

Cross-References.

Bond of commissioner, KRS 62.160 , 62.180 .

Department heads, appointment, compensation, KRS 12.040 .

Department heads to report to Governor, KRS 12.110 .

336.030. Employees — Appointment — Salaries.

The secretary, with the approval of the Governor, shall appoint necessary deputies, attorneys, statisticians, inspectors and other employees and fix their salaries according to law. These employees shall receive their actual necessary expenses.

History. 1599c-6, 4767a-3; 2005, ch. 123, § 35, effective June 20, 2005; 2010, ch. 24, § 1702, effective July 15, 2010.

Research References and Practice Aids

Cross-References.

Administrative department staffs, appointment, KRS 12.070 .

Attorneys for state agencies, employment of, KRS 12.210 .

336.040. Functions and duties of Labor Cabinet.

  1. The Labor Cabinet shall exercise all administrative functions of the state concerned with employer-employee relationships, including the safety of workers and workers’ compensation.
  2. The cabinet shall:
    1. Promote friendly and cooperative relations between employers and employees;
    2. Accumulate and publish industrial statistics and aid and encourage the development of new industries and the expansion of existing industries in Kentucky;
    3. Encourage, promote, and develop fair practices both by employers and employees; discourage and eliminate as far as practicable all unfair practices by either; and enforce laws relating to unfair practices;
    4. Foster, promote, and develop the welfare of both wage earners and industries in Kentucky;
    5. Improve working and living conditions of employees, and advance their opportunities for profitable employment; and
    6. Inquire into the causes of accidental injuries and occupational diseases arising out of and in the course of employment, and advance measures for the prevention of accidents and occupational diseases and for the improvement of sanitary conditions in places of employment.

History. 1599c-7, 4618-110: amend. Acts 1966, ch. 255, § 253; 1994, ch. 181, § 4, effective April 4, 1994; 2010, ch. 24, § 1703, effective July 15, 2010.

NOTES TO DECISIONS

1. Powers of Commissioners.

There is nothing in the provisions of this chapter authorizing the Commissioner of Industrial Relations (now Secretary of Labor) to require an employer to consent to a collective bargaining election on his premises during business hours. Blue Boar Cafeteria Co. v. Hackett, 312 Ky. 288 , 227 S.W.2d 199, 1950 Ky. LEXIS 637 ( Ky. 1950 ).

Cited:

Fraysure v. Kentucky Unemployment Compensation Com., 305 Ky. 164 , 202 S.W.2d 377, 1947 Ky. LEXIS 709 ( Ky. 1947 ).

Research References and Practice Aids

Cross-References.

Apprenticeship and training council, KRS 343.020 .

Laborer on public works may file complaint with Cabinet, KRS 337.550 .

Safety and health of employees, KRS Chapter 338.

Unemployment Insurance Commission, KRS 341.110 .

Wages and hours, KRS Chapter 337.

Workers’ Compensation Board, KRS 342.215 .

Kentucky Law Journal.

Johnson, The Development of Labor Management Legislation in Kentucky, 45 Ky. L.J. 40 (1956).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Kentucky Department of Labor Forms, § 287.00.

336.050. Duties of secretary.

  1. The secretary in person or by representative shall:
    1. Investigate and ascertain the wages of all employees employed in this state;
    2. Enter the place of business or employment of any employer of employees to examine and inspect all books, registers, payrolls, and other records that have a bearing upon the question of wages of employees and to ascertain whether the orders of the secretary are complied with; and
    3. Require from the employer a full and correct statement in writing when the secretary or the secretary’s representative considers it necessary, of the wages paid to all employees in his or her employment.
  2. The secretary in person or by representative may prosecute any violation of any of the provisions of any law which it is his or her duty to administer or enforce. The secretary may enter into reciprocal agreements with the corresponding labor agency or official of any other state to collect in the other state claims assigned to the secretary. To the extent allowed by a reciprocal agreement, the secretary may maintain actions in the courts of another state to collect claims and judgments for wages and assign claims and judgments to the agency or official of another state for collection. If a reciprocal agreement extends a like comity to cases arising in the Commonwealth, the secretary may maintain actions in the courts of the Commonwealth to collect claims and judgments for wages arising in the other state in the same manner and to the same extent that actions are authorized when arising in the Commonwealth.

HISTORY: 1599c-39, 4767a-3: amend. Acts 1974, ch. 64, § 1; 1974, ch. 386, § 59; 1998, ch. 241, § 1, effective July 15, 1998; 2010, ch. 24, § 1704, effective July 15, 2010; 2017 ch. 134, § 4, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Cabe v. Kitchen, 415 S.W.2d 96, 1967 Ky. LEXIS 300 ( Ky. 1967 ); Board of Trustees v. Public Employees Council No. 51 American Federation of States, etc, 571 S.W.2d 616, 1978 Ky. LEXIS 393 ( Ky. 1978 ).

Research References and Practice Aids

Cross-References.

Department heads to exercise powers and perform functions of Department, KRS 12.040 .

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

336.060. Authority to issue and serve subpoenas and take depositions — Enforcement of subpoenas.

  1. In the conduct of an investigation or hearing, the secretary or any authorized deputy may issue subpoenas to compel the attendance of witnesses and parties and the production of books, papers, and records competent and relevant to the matter under investigation; administer oaths; examine witnesses under oath; take the verification or proof of written instruments; and take testimony, depositions, and affidavits to carry out any law over which the cabinet has jurisdiction.
  2. When a person fails to comply with a cabinet subpoena, the Circuit Court of the county in which the person is found, resides, or has his principal place of business may, upon application of the secretary, his or her authorized representatives, or the party requesting the subpoena, issue an order requiring compliance. In any proceeding brought under this section, the Circuit Court having issued said order of compliance may modify or set aside the subpoena.
  3. Subpoenas issued under this section may be served by an inspector or other authorized representative of the cabinet, at any place in the state.

History. 1599c-12, 1599c-13, 4767a-3: amend. Acts 1946, ch. 244; 1980, ch. 191, § 1, effective July 15, 1980; 2010, ch. 24, § 1705, effective July 15, 2010.

NOTES TO DECISIONS

  1. Hearing on Wages.
  2. Records.
1. Hearing on Wages.

Secretary of Labor was authorized to hold hearing on employer’s liability for difference between wages paid and minimum wages and injunction prohibiting same was improperly issued. Cabe v. Eubanks, 411 S.W.2d 334, 1967 Ky. LEXIS 467 ( Ky. 1967 ).

2. Records.

Fact that records are required to be kept for at least one year does not restrict the Secretary’s rights of inspection to records kept during that period, and subpoena for records in existence prior to the one-year period is valid. Cabe v. Kitchen, 415 S.W.2d 96, 1967 Ky. LEXIS 300 ( Ky. 1967 ).

Safety audits would assist in determining whether there were unaddressed health and safety issues, and safety audits performed by the subject of the investigation were relevant because they were directly related to the purpose of the inspection; Kentucky’s Division of Occupational Safety and Health Compliance had the authority to subpoena the safety audits. Reynolds Consumer Prods., LLC v. Comm'r of the Dep't of Workplace Stds., 592 S.W.3d 758, 2020 Ky. App. LEXIS 2 (Ky. Ct. App. 2020).

There was no genuine dispute that what the Kentucky’s Division of Occupational Safety and Health Compliance (KOSH) sought was prepared in anticipation of litigation in Virginia regarding a specific accident there, and in considering whether the privilege remains viable when a party seeks to discover the work product in a subsequent, unrelated matter, the court concludes that it does. Reynolds Consumer Prods., LLC v. Comm'r of the Dep't of Workplace Stds., 592 S.W.3d 758, 2020 Ky. App. LEXIS 2 (Ky. Ct. App. 2020).

Research References and Practice Aids

Cross-References.

Administrative department officers may examine witnesses under oath, KRS 12.120 .

336.070. Investigation of working conditions.

The cabinet shall make investigations, collect and compile statistics and report on the conditions of industries, labor and unemployment, and upon all matters relating to employer-employee relations and working conditions. Complete permanent records shall be made of all investigations, showing date of examination, condition in which the establishment was found, and changes ordered.

History. 33a-7, 1599c-9; 2010, ch. 24, § 1706, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Cabe v. Eubanks, 411 S.W.2d 334, 1967 Ky. LEXIS 467 ( Ky. 1967 ).

336.075. Reports of human trafficking — Immunity.

  1. The cabinet shall report all incidents of human trafficking as defined in KRS 529.010 about which the cabinet knows or has reasonable cause to believe within twenty-four (24) hours to a local law enforcement agency or the Department of Kentucky State Police, and the appropriate Commonwealth’s attorney or county attorney.
  2. Anyone acting upon reasonable cause in the making of a report under subsection (1) of this section in good faith shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed.

History. Enact. Acts 2013, ch. 25, § 24, effective June 25, 2013.

336.080. Inspection of places of employment.

The secretary may have inspected any place of employment affected by or subject to any law of this state relating to the employment of labor, except places of employment within the jurisdiction of the Department for Natural Resources. In the discharge of his or her duties, the secretary or the secretary’s authorized deputy may enter places of employment at any reasonable time. Upon request, the cabinet shall furnish to any employer a detailed report of any inspection in his or her place of business.

History. 33a-6, 1599c-10; 2010, ch. 24, § 1707, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Blue Boar Cafeteria Co. v. Hackett, 312 Ky. 288 , 227 S.W.2d 199, 1950 Ky. LEXIS 637 ( Ky. 1950 ).

Research References and Practice Aids

Cross-References.

Inspection of places where minors are employed, KRS 339.450 .

336.090. Inspectors to report violations of health and fire laws and rulings.

  1. The cabinet shall be furnished with a copy of all the laws and rulings of the secretary for health and family services affecting sanitary conditions in places of employment, not covered by the labor laws of the state, and shall report in writing to the state, county, or city health authorities any violations coming under the observation of its inspectors while visiting places of employment in the regular performance of their duty.
  2. The inspectors shall be furnished with a copy of all the laws and rulings of the Department of Housing, Buildings and Construction relating to fire hazards in places of employment, and shall report in writing to the state, county, or city authorities any violations coming under their observation while visiting places of employment in the regular performance of their duty.

History. 33a-10: amend. Acts 1966, ch. 255, § 254; 1974, ch. 74, Art. V, § 24(1), VI, § 107(1); 1998, ch. 426, § 557, effective July 15, 1998; 2005, ch. 99, § 606, effective June 20, 2005; 2010, ch. 24, § 1708, effective July 15, 2010.

Legislative Research Commission Notes.

(4/2/90, as revised 7/14/2000). In 1974, certain responsibilities of the Department of Public Safety were transferred to the Department of Insurance through the enactment of KRS 304.2-015 . See 1974 Ky. Acts ch. 74, art. V, § 20. This statute was renumbered as the former KRS 198B.035 (repealed 2000 Ky. Acts ch. 270, sec. 10, effective July 14, 2000) in 1980 and amended to place these responsibilities in the Department of Housing, Buildings and Construction. See 1980 Ky. Acts ch. 188, § 243. Accordingly, the prior reference to the Department of Public Safety contained in subsection (2) of this section has been changed to the Department of Housing, Buildings and Construction by the Reviser of Statutes acting pursuant to KRS 7.136(2).

Research References and Practice Aids

Cross-References.

Administrative agencies to cooperate, KRS 12.090 .

336.100. Notice of occupancy of place of employment to be given.

Within one (1) month after any employer begins to occupy a factory, workshop, mill, or other place of employment he or she shall notify the cabinet, in writing, of such occupancy. If the employer is a corporation, the notice shall state the legal title of the corporation and name of an agent upon whom service of summons can be made; and if a firm, the individual names of members of the firm and its legal title.

History. 33a-11; 2010, ch. 24, § 1709, effective July 15, 2010.

336.110. Unlawful to refuse to admit inspector.

No person shall refuse or attempt to prevent the admission of any inspector of the cabinet to any place which he or she is required by law to inspect, at any reasonable hour, or during the working hours of the persons employed there, or interfere with the performance of the official duties of any inspector.

History. 33a-8; 2010, ch. 24, § 1710, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Blue Boar Cafeteria Co. v. Hackett, 312 Ky. 288 , 227 S.W.2d 199, 1950 Ky. LEXIS 637 ( Ky. 1950 ).

336.120. Cooperation with federal agencies.

The secretary, with the approval of the Governor, may enter into cooperative agreements with appropriate agencies of the federal government, whereby Acts of Congress and regulations issued in pursuance thereof affecting the employment of labor within this state may be administered, supervised, inspected, and enforced by the cabinet. Similar agreements may be entered into by the secretary with the approval of the Governor, for the cooperation of federal agencies in the enforcement of state laws whose enforcement is vested in the secretary.

History. 1599c-14; 2010, ch. 24, § 1711, effective July 15, 2010.

336.130. Employees may organize, bargain collectively, strike, picket — Conduct prohibited — Effect of violence or injury to person or property.

  1. Employees may, free from restraint or coercion by the employers or their agents, associate collectively for self-organization and designate collectively representatives of their own choosing to negotiate the terms and conditions of their employment to effectively promote their own rights and general welfare. Employees, collectively and individually, may strike, engage in peaceful picketing, and assemble collectively for peaceful purposes, except that no public employee, collectively or individually, may engage in a strike or a work stoppage. Nothing in KRS 65.015 , 67A.6904 , 67C.406 , 70.262 , 78.740 , 78.480 , 336.132 , 336.134 , 336.180 , 336.990 , and 345.050 shall be construed as altering, amending, granting, or removing the rights of public employees to associate collectively for self-organization and designate collectively representatives of their own choosing to negotiate the terms and conditions of their employment to effectively promote their own rights and general welfare.
  2. Neither employers or their agents nor employees or associations, organizations or groups of employees shall engage or be permitted to engage in unfair or illegal acts or practices or resort to violence, intimidation, threats or coercion.
    1. Notwithstanding subsection (1) of this section or any provision of the Kentucky Revised Statutes to the contrary, no employee shall be required, as a condition of employment or continuation of employment, to: (3) (a) Notwithstanding subsection (1) of this section or any provision of the Kentucky Revised Statutes to the contrary, no employee shall be required, as a condition of employment or continuation of employment, to:
      1. Become or remain a member of a labor organization;
      2. Pay any dues, fees, assessments, or other similar charges of any kind or amount to a labor organization; or
      3. Pay to any charity or other third party, in lieu of these payments, any amount equivalent to or pro rata portion of dues, fees, assessments, or other charges required of a labor organization.
    2. As used in this subsection, the term “employee” means any person employed by or suffered or permitted to work for a public or private employer.
  3. The secretary of the Labor Cabinet or his or her representative shall investigate complaints of violations or threatened violations of subsection (3) of this section and may initiate enforcement of a criminal penalty by causing a complaint to be filed with the appropriate local prosecutor and ensure effective enforcement.
  4. Except in instances where violence, personal injury, or damage to property have occurred and such occurrence is supported by an affidavit setting forth the facts and circumstances surrounding such incidents, the employees and their agents shall not be restrained or enjoined from exercising the rights granted them in subsection (1) of this section without a hearing first being held, unless the employees or their agents are engaged in a strike in violation of a “no strike” clause in their labor contract.
  5. Submission of a false affidavit concerning violence, personal injury, or damage to property shall constitute a violation of KRS 523.030 . In the absence of any such affidavit alleging violence, personal injury, or damage injunctions shall be issued only by a Circuit Judge or other justice or judge acting as a Circuit Judge pursuant to law.

History. 1599c-28: amend. Acts 1978, ch. 134, § 1, effective June 17, 1978; 2017 ch. 1, § 1, effective January 9, 2017.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Picketing.
  3. Collective Action.
  4. — Limitations.
  5. Bargaining Agent.

6 Representation Election.

7. Discharge of Employee.

8. — Punitive Damages.

9. Public Employees.

10. Supervisors.

11. Authority of Courts.

12. Federal Preemption.

13. Membership.

1. Constitutionality.

Union’s representation of a nonmember employee through collective bargaining or grievance processing serves the union’s interest, irrespective of whether it receives an agency fee, and a union is not “compelled” by 2017 Ky. Acts 1 to represent nonmembers without compensation; because exclusive designation fully and adequately compensates unions for free-riders, the Act does not constitute a taking of private property without compensation. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Legislature did not impermissibly designate 2017 Ky. Acts 1 as emergency legislation because its proffered reason for an emergency had a rational basis. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

2. Picketing.

This section does not announce a public policy that prohibits peaceful picketing. Whitt v. Stephens, 246 S.W.2d 996, 1951 Ky. LEXIS 1280 ( Ky. 1951 ).

An injunction which had been granted restraining union from picketing employer’s place of business could not be extended to restrain representatives of the union from attempting to persuade customers of the employer to cease doing business with the employer as long as the employer remained nonunion and in absence of violence, intimidation, threats or coercion. Amalgamated Meat Cutters etc. Workers v. F. B. Purnell Sausage Co., 264 S.W.2d 870, 1953 Ky. LEXIS 1270 (Ky. Ct. App. 1953).

Peaceful picketing comes within the area of speech and is protected by the United States Const., Amend. 14. Cantrell v. Food Store Employees' Union, 309 S.W.2d 335, 1957 Ky. LEXIS 151 ( Ky. 1957 ).

The inquiry in every case involving picketing in this jurisdiction, where a bona fide labor dispute has developed between the employer and the employed, is whether the actual communication of facts and ideas has been departed from to the extent that the statutory or common law of this state and particularly this section is being violated. Cantrell v. Food Store Employees' Union, 309 S.W.2d 335, 1957 Ky. LEXIS 151 ( Ky. 1957 ).

3. Collective Action.

An act by an employer which would be a crime or a violation of a legislative enactment or contrary to a defined public policy is not a proper object of concerted action against him by workers. Broadway & Fourth Ave. Realty Co. v. Hotel & Restaurant Employees Union, 244 S.W.2d 746, 1951 Ky. LEXIS 1241 ( Ky. 1951 ). See Blue Boar Cafeteria Co. v. Hotel & Restaurant Employees & Bartenders International Union, 254 S.W.2d 335, 1952 Ky. LEXIS 1130 ( Ky. 1952 ), cert. denied, 346 U.S. 834, 74 S. Ct. 41, 98 L. Ed. 357, 1953 U.S. LEXIS 2639 (U.S. 1953).

Anything that is proper for employees to do individually may be done either collectively or by their properly designated agent. R. H. Hobbs Co. v. Christian, 325 S.W.2d 329, 1959 Ky. LEXIS 54 ( Ky. 1959 ).

4. — Limitations.

Although the right of collective bargaining is established, a union may not bind its members individually to accept a specific wage, or serve for a definite period, or to surrender personal rights. Braddom v. Three Point Coal Corp., 288 Ky. 734 , 157 S.W.2d 349, 1941 Ky. LEXIS 200 ( Ky. 1941 ).

5. Bargaining Agent.

Members of a labor organization may select a bargaining agency of their choice for the accomplishment of the purposes noted. Cantrell v. Food Store Employees' Union, 309 S.W.2d 335, 1957 Ky. LEXIS 151 ( Ky. 1957 ).

6 Representation Election.

Nowhere can there be found any right to invade an employer’s premises for the purpose of taking the consensus of his employees with respect to choosing an agent to represent them collectively, or any power to compel obedience of an order of the Commissioner to consent to his doing so on the employer’s time. Blue Boar Cafeteria Co. v. Hackett, 312 Ky. 288 , 227 S.W.2d 199, 1950 Ky. LEXIS 637 ( Ky. 1950 ).

7. Discharge of Employee.

Discharge of employee because he had authorized a labor union to represent him for the purpose of collective bargaining is a violation of this section. Pari-Mutuel Clerks' Union v. Kentucky Jockey Club, 551 S.W.2d 801, 1977 Ky. LEXIS 457 ( Ky. 1977 ).

8. — Punitive Damages.

Lower court did not err by allowing recovery of punitive damages in action by employees for wrongful termination as a result of union activity where evidence demonstrated a violation of this section, employees were threatened about attending a union meeting and employees were dismissed after attending such meeting and instructions and jury assessments were in line with KRS 411.184 and 411.186 . Simpson County Steeplechase Ass'n v. Roberts, 898 S.W.2d 523, 1995 Ky. App. LEXIS 74 (Ky. Ct. App. 1995).

9. Public Employees.

As the original law pertaining to employer-employee relationship clearly and expressly excluded public employees from the granted right to strike, the inadvertent omission of the exclusion of public employees from the granted right to strike in this chapter when the statutes were revised could not be considered a grant of such right. Jefferson County Teachers Asso. v. Board of Education, 463 S.W.2d 627, 1970 Ky. LEXIS 661 ( Ky. 1970 ), cert. denied, 404 U.S. 865, 92 S. Ct. 75, 30 L. Ed. 2d 109, 1971 U.S. LEXIS 3701 (U.S. 1971).

There is a reasonable basis for distinguishing between private and public employees, particularly in the area of the right to strike, and to treat them differently is not a denial of equal protection in the constitutional sense. Jefferson County Teachers Asso. v. Board of Education, 463 S.W.2d 627, 1970 Ky. LEXIS 661 ( Ky. 1970 ), cert. denied, 404 U.S. 865, 92 S. Ct. 75, 30 L. Ed. 2d 109, 1971 U.S. LEXIS 3701 (U.S. 1971).

The right to join a union emanates from the rights of freedom of expression and association guaranteed by the Constitution of Kentucky and the United States Constitution, and the Board of Trustees of the University of Kentucky may not, without showing a paramount public interest, lawfully prohibit its nonacademic employees from membership in a union. Board of Trustees v. Public Employees Council No. 51 American Federation of States, etc, 571 S.W.2d 616, 1978 Ky. LEXIS 393 ( Ky. 1978 ).

There is no duty placed by the legislature on the Board of Trustees of the University of Kentucky to recognize, negotiate or bargain with the group of nonacademic employees. Board of Trustees v. Public Employees Council No. 51 American Federation of States, etc, 571 S.W.2d 616, 1978 Ky. LEXIS 393 ( Ky. 1978 ).

10. Supervisors.

Supervisors as contrasted with employees could be enjoined by the courts from engaging in concerted activities, including picketing, for the purpose of securing recognition by their employer of a local union composed of supervisors only, to which they belong, as their collective bargaining agent. Marine Officers Asso. v. Ohio River Sand Co., 467 S.W.2d 758, 1971 Ky. LEXIS 398 ( Ky. 1971 ).

11. Authority of Courts.

The circuit courts of this state are not empowered, by virtue of statutory authorization for employees to associate freely for purposes of collective bargaining, to perform the functions of the National Labor Relations Board, including the granting of injunctive relief, in cases where the NLRB either lacks or declines to exercise jurisdiction. Pari-Mutuel Clerks' Union v. Kentucky Jockey Club, 551 S.W.2d 801, 1977 Ky. LEXIS 457 ( Ky. 1977 ).

Lower court did not err in denying employees, who were successful in their action for wrongful termination for union activity, injunctive relief of reinstatement or to enjoin employer’s illegal anti-union activity as to grant such relief would impermissibly expand this section. Simpson County Steeplechase Ass'n v. Roberts, 898 S.W.2d 523, 1995 Ky. App. LEXIS 74 (Ky. Ct. App. 1995).

12. Federal Preemption.

Employer was entitled to dismissal of a former employee’s claim of retaliatory discharge in violation of KRS 336.130 on the ground that the state law claim was preempted by the National Labor Relations Act, 29 USCS § 141 et seq.; the National Labor Relations Board had jurisdiction over the claim since the employee’s claim of retaliation for his role in organizing a meeting with fellow employees concerned conduct that was arguably protected under 29 USCS § 157 and arguably prohibited by 29 USCS § 158 notwithstanding the fact that the activity was not union-related. Smith v. Excel Maint. Servs., 617 F. Supp. 2d 520, 2008 U.S. Dist. LEXIS 40043 (W.D. Ky. 2008 ).

Because an employee’s allegation of wrongful discharge based upon participation in union-organizing activities was clearly impermissible discrimination under 29 USCS § 158, based upon the exercise of lawful rights given under 29 USCS § 157, the employee’s KRS 336.130 wrongful termination action was preempted. Methodist Hosp. of Ky. Inc. v. Gilliam, 283 S.W.3d 654, 2009 Ky. LEXIS 4 ( Ky. 2009 ).

13. Membership.

2017 Ky. Acts 1 does not violate the equal protection provisions of the Kentucky Constitution; the legislature clearly established a rational basis for the Act, to promote economic development, to promote job growth, and to remove Kentucky’s economic disadvantages in competing with neighboring states. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Labor unions are not akin to the Kentucky Bar Association (KBA) for purposes of 2017 Ky. Acts 1; the KBA is not a voluntary association, except in the sense that no one is required to practice law in Kentucky. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Rational basis review is appropriate for evaluating 2017 Ky. Acts 1 since the Act is expressly permitted by the Taft-Hartley Act. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Cited in:

Hill v. United Public Workers Union, 314 Ky. 791 , 236 S.W.2d 887, 1950 Ky. LEXIS 1101 ( Ky. 1950 ); National Electric Service Corp. v. United Mine Workers, 279 S.W.2d 808, 1955 Ky. LEXIS 549 ( Ky. 1955 ); Food Basket, Inc. v. Amalgamated Meat Cutters & Butcher Workmen, etc., 293 S.W.2d 861, 1956 Ky. LEXIS 97 ( Ky. 1956 ); Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 1983 Ky. LEXIS 305 ( Ky. 1983 ); Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 1995 Ky. LEXIS 48 ( Ky. 1995 ).

Opinions of Attorney General.

Schoolteachers may organize themselves into a labor union and bargain in a collective manner with the Board of Education. However, the Board may listen or not, as it chooses, and cannot, by negotiations with a teachers’ union, tie its own hands, since to do so would rob it of its legal prerogative to have the last word concerning all matters pertaining to schools. OAG 65-84 .

This section is inapplicable to public employees and therefore, the Kentucky State Fair Board may not allow a union to represent state employees who perform certain services for the Kentucky Fair and Exposition Center. OAG 72-279 .

Research References and Practice Aids

Kentucky Law Journal.

Walden, New Light on Picketing — The Blue Boar Case, 42 Ky. L.J. 248 (1954).

Bornstein, Organizational Picketing in American Law, 46 Ky. L.J. 25 (1957).

Kentucky Law Survey, Hanley and Schwemm, Education: Teacher’s Rights, 67 Ky. L.J. 721 (1978-1979).

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

Notes, Nelson Steel Corp. v. McDaniel: DiscriminationAgainst Employees Who Have Filed Workers’ Compensation Claims Against PreviousEmployers, 23 N. Ky. L. Rev. 435 (1996).

ALR

Right of public employees to form or join a labor organization affiliated with a federation of trade unions or which includes private employees. 40 A.L.R.3d 728.

336.132. Labor agreement in violation of KRS 336.130 is unlawful and void — Exceptions.

Any agreement, understanding, or practice, written or oral, implied or expressed, between any labor organization and employer which violates an employee’s rights as set forth in KRS 336.130(3) shall be unlawful and void, except that KRS 336.130(3) shall not apply to:

  1. Employers and employees covered by the Federal Railway Labor Act;
  2. Federal employers and employees;
  3. Employers and employees on exclusive federal enclaves;
  4. Employers and employees where it would conflict or be preempted by federal law; or
  5. Any agreement between employers and employees or labor organization entered into before January 9, 2017, but the provisions of KRS 336.130(3) shall apply to any new contract or an extension or renewal of any existing agreement entered into on or after January 9, 2017.

HISTORY: 2017 ch. 1, § 4, effective January 9, 2017.

336.134. Public employee must give prior written consent for deduction of membership dues by public employer or public employee labor organization.

A public employer or a labor organization representing public employees shall not deduct membership dues of an employee organization, association, or union from the wages, earnings, or compensation of a public employee without the express written consent of the public employee. This consent shall be made prior to any deductions being made and may be revoked by the public employee at any time by written notice to the employer.

HISTORY: 2017 ch. 1, § 5, effective January 9, 2017.

336.135. Employee must give prior written consent for enrollment as member of labor organization and deduction of membership dues — Recordkeeping — Exception.

  1. As used in this section, “employee” means any person employed by or suffered or permitted to work for a public or private employer, except “employee” shall not mean any person covered by the Federal Railway Labor Act and the National Labor Relations Act.
  2. An employee shall not be enrolled as a member of a labor organization unless the employee has affirmatively requested membership in writing.
  3. A sum shall not be withheld from the earnings of any employee for the purpose of paying union dues or other fees paid by members of a labor organization or employees who are non-members except upon the written or electronic authorization of the employee member or employee non-member.
  4. The requirements in this section shall not be waived by any member or non-member of a labor organization, nor required to be waived as a condition of obtaining or maintaining employment.
  5. Signing or refraining from signing the authorization set forth in subsections (2) and (3) of this section shall not be made a condition of obtaining or maintaining employment.
    1. A labor organization shall maintain financial records substantially similar to and no less comprehensive than the records required to be maintained under 29 U.S.C. sec 431(b). (6) (a) A labor organization shall maintain financial records substantially similar to and no less comprehensive than the records required to be maintained under 29 U.S.C. sec 431(b).
    2. These records shall be kept in a searchable electronic format and provided to every employee it represents.
    3. The records and the data or summary by which the records can be verified, explained, or clarified shall be kept for a period of not less than five (5) years.
  6. This section shall not apply to any agreement between employers and employees or labor organizations entered into before January 9, 2017, but any such agreement entered into, opted in, renewed, or extended on or after January 9, 2017 and which violates this section shall be unlawful and void.
  7. This section shall be known as the “Paycheck Protection Act.”

HISTORY: 2017 ch. 6, § 1, effective January 9, 2017.

336.137. Marketplace contractor not an employee of a marketplace platform — Conditions — Exclusion from application of section.

  1. As used in this section:
    1. “Marketplace contractor” means a person or entity that enters into an agreement with a marketplace platform to use its digital network or mobile application to receive connections to third-party individuals or entities seeking services; and
    2. “Marketplace platform” means a person or entity that:
      1. Offers a digital network or mobile application that connects marketplace contractors to third-party individuals or entities seeking the type of services offered by a marketplace contractor;
      2. Accepts service requests from the public exclusively through its digital network or mobile application and does not accept service requests by telephone, facsimile, or in person at a physical retail location; and
      3. Does not perform the services offered by the marketplace contractor at or from a physical business location that is operated by the platform in the state.
  2. A marketplace contractor shall not be deemed to be an employee of a marketplace platform for any purpose under state and local laws, regulations, and ordinances, including but not limited to KRS Chapters 336, 341, and 342, so long as:
    1. The marketplace platform and the marketplace contractor agree in writing that the marketplace contractor is an independent contractor with respect to the marketplace platform;
    2. The marketplace platform does not unilaterally prescribe specific hours during which the marketplace contractor must be available to accept service requests from third-party individuals or entities submitted solely through the online-enabled application, software, Web site, or system of the marketplace platform;
    3. The marketplace platform does not prohibit the marketplace contractor from using any online-enabled application, software, Web site, or system offered by another marketplace platform;
    4. The marketplace platform does not restrict the marketplace contractor from engaging in another occupation or business;
    5. The marketplace contractor bears all or substantially all of the expenses incurred by the marketplace contractor in performing the services; and
    6. The marketplace platform does not supply instrumentalities or tools for the person doing the work;
  3. For services performed by a marketplace contractor prior to July 14, 2018, the marketplace contractor shall be treated as an independent contractor of the marketplace platform and not an employee of the marketplace platform if the requirements set forth in subsection (2) of this section were met at the time at which the services were performed.
  4. This section shall not apply to:
    1. Service performed in the employment of a state or any political subdivision of a state, or in the employ of an Indian tribe, or any instrumentality of a state, any political subdivision of a state, or any Indian tribe that is wholly owned by one (1) or more states or political subdivisions of Indian tribes, provided such service is excluded from employment as defined in 26 U.S.C. secs. 3301 to 3311;
    2. Service performed in the employment of a religious, charitable, educational, or other organization that is excluded from employment as defined in 26 U.S.C. secs. 3301 to 3311, solely by reason of 26 U.S.C. sec. 3306(c)(8) ; or
    3. Services consisting of transporting freight, sealed envelopes, boxes or parcels, or other sealed containers for compensation.

HISTORY: 2018 ch. 18, § 1, effective July 14, 2018.

336.140. Secretary to investigate and mediate labor disputes. [Repealed]

History. 1599c-8; 1998, ch. 579, § 8, effective July 15, 1998; 2010, ch. 24, § 1712, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 1599c-8v; 1998, ch. 579, § 8, effective July 15, 1998; 2010, ch. 24, § 1712, effective July 15, 2010) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

336.150. Conciliation of labor disputes — Joint wage agreement — Federal jurisdiction to supersede. [Repealed.]

Compiler’s Notes.

This section (1599c-29) was repealed by Acts 1974, ch. 30, § 3.

336.151. Conciliation and mediation of labor disputes. [Repealed]

History. Enact. Acts 1974, ch. 30, § 1; 1998, ch. 579, § 9, effective July 15, 1998; 2010, ch. 24, § 1713, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 30, § 1; 1998, ch. 579, § 9, effective July 15, 1998; 2010, ch. 24, § 1713, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

336.152. Minimizing labor disputes. [Repealed]

History. Enact. Acts 1974, ch. 30, § 2; 1998, ch. 579, § 10, effective July 15, 1998; 2010, ch. 24, § 1714, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 30, § 2; 1998, ch. 579, § 10, effective July 15, 1998; 2010, ch. 24, § 1714, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

336.153. Disclosure by mediators prohibited. [Repealed]

History. Enact. Acts 1986, ch. 192, § 1, effective July 15, 1986; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 192, § 1, effective July 15, 1986) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

336.156. Third parties to labor/management negotiations or arbitration — Duties — Regulations by secretary. [Repealed]

History. Enact. Acts 1986, ch. 254, § 1, effective July 15, 1986; 2010, ch. 24, § 1715, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 254, § 1, effective July 15, 1986; 2010, ch. 24, § 1715, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

336.160. Reports to General Assembly.

The secretary shall present biennial reports to the General Assembly giving statistical data relating to employment and unemployment in the state such as the hours and wages of employees, cost of living, the amount of labor required, the estimated number and classification of persons unemployed, the estimated number of persons depending on daily labor for support, the probable chances of increased employment, the number of unemployed depending on public relief, facts relating to industrial accidents, the workers’ compensation for industrial injuries, labor disputes, and facts relating to acts of the cabinet in the enforcement of the law and its work generally.

History. 1599c-11; 1998, ch. 579, § 11, effective July 15, 1998; 2010, ch. 24, § 1716, effective July 15, 2010.

Research References and Practice Aids

Cross-References.

Reports to Governor and General Assembly, KRS 12.110 .

Labor-Management Relations

336.162. Kentucky Labor-Management Advisory Council. [Repealed]

History. Enact. Acts 1978, ch. 148, § 1, effective June 17, 1978; 1980, ch. 358, § 1, effective July 15, 1980; 1982, ch. 396, § 53, effective July 15, 1982; 1984, ch. 414, § 10, effective July 13, 1984; 2010, ch. 24, § 1717, effective July 15, 2010; repealed by 2017 ch. 80, § 58, effective June 29, 2017; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 148, § 1, effective June 17, 1978; 1980, ch. 358, § 1, effective July 15, 1980; 1982, ch. 396, § 53, effective July 15, 1982; 1984, ch. 414, § 10, effective July 13, 1984; 2010, ch. 24, § 1717, effective July 15, 2010) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

336.164. Duties of council — Staff support. [Repealed]

History. Enact. Acts 1978, ch. 148, § 2, effective June 17, 1978; 1982, ch. 396, § 54, effective July 15, 1982; 1984, ch. 414, § 11, effective July 13, 1984; 1998, ch. 579, § 5, effective July 15, 1998; 2005, ch. 123, § 36, effective June 20, 2005; 2010, ch. 24, § 1718, effective July 15, 2010; repealed by 2017 ch. 80, § 58, effective June 29, 2017; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 148, § 2, effective June 17, 1978; 1982, ch. 396, § 54, effective July 15, 1982; 1984, ch. 414, § 11, effective July 13, 1984; 1998, ch. 579, § 5, effective July 15, 1998; 2005, ch. 123, § 36, effective June 20, 2005; 2010, ch. 24, § 1718, effective July 15, 2010) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

Legislative Research Commission Notes.

KRS 446.260 , the repeal of this statute in and prevails over its amendment in 2017 Ky. Acts ch. 82.

336.165. Grants-in-aid to labor-management relations organizations. [Repealed]

History. Enact. Acts 1990, ch. 41, § 1, effective July 13, 1990; 1998, ch. 579, § 6, effective July 15, 1998; 2010, ch. 24, § 1719, effective July 15, 2010; 2017 ch. 82, § 4, effective June 29, 2017; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 41, § 1, effective July 13, 1990; 1998, ch. 579, § 6, effective July 15, 1998; 2010, ch. 24, § 1719, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

Legislative Research Commission Notes.

(6/29/2017). Under KRS 446.260 , the repeal of this statute in 2017 Ky. Acts ch. 134 prevails over its amendment in 2017 Ky. Acts ch. 82.

Arbitration of Labor Disputes

336.1661. Definitions. [Repealed]

History. Enact. Acts 1986, ch. 124, § 1, effective July 15, 1986; 2010, ch. 24, § 1720, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 124, § 1, effective July 15, 1986; 2010, ch. 24, § 1720, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

336.1662. Duties of secretary. [Repealed]

History. Enact. Acts 1986, ch. 124, § 2, effective July 15, 1986; 2010, ch. 24, § 1721, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 124, § 2, effective July 15, 1986; 2010, ch. 24, § 1721, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

336.1663. Arbitrators — Relationship to cabinet and parties. [Repealed]

History. Enact. Acts 1986, ch. 124, § 3, effective July 15, 1986; 2010, ch. 24, § 1722, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 124, § 3, effective July 15, 1986; 2010, ch. 24, § 1722, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

336.1664. Rules and regulations. [Repealed]

History. Enact. Acts 1986, ch. 124, § 4, effective July 15, 1986; 2010, ch. 24, § 1723, effective July 15, 2010; repealed by 2017 ch. 134, § 13, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 124, § 4, effective July 15, 1986; 2010, ch. 24, § 1723, effective July 15, 2010) was repealed by Acts 2017, ch. 134, § 13, effective June 29, 2017.

Labor Organizations

336.170. Certain national and international labor organizations to have local units in Kentucky.

  1. It shall be unlawful for any national or international labor organization having one hundred (100) or more members in good standing who reside or work in Kentucky not to have at all times one or more duly chartered and established local or subsidiary organizations in this state.
  2. Any national or international labor organization which violates subsection (1) of this section shall, for each offense, be fined not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000).

History. Enact. Acts 1952, ch. 164, §§ 1, 2.

NOTES TO DECISIONS

  1. Purpose.
  2. Organization.
  3. — Type of Organization.
  4. Elements of Violation.
1. Purpose.

The obvious purpose of this section was to require that all members of the union have the opportunity for membership in a Kentucky local or subsidiary organization that would have jurisdiction to represent them in Kentucky. Hamilton v. International Union of Operating Engineers, 262 S.W.2d 695, 1953 Ky. LEXIS 1126 ( Ky. 1953 ).

2. Organization.

The word “organization” contemplates an organizational unit with a governmental structure of its own, something that is capable of some degree of independent existence as an entity. Hamilton v. International Union of Operating Engineers, 262 S.W.2d 695, 1953 Ky. LEXIS 1126 ( Ky. 1953 ).

3. — Type of Organization.

This section means there must be a local organization available for all of the members of the union in Kentucky. Hamilton v. International Union of Operating Engineers, 262 S.W.2d 695, 1953 Ky. LEXIS 1126 ( Ky. 1953 ).

To meet the requirements of this section, the union might establish one (1) local with statewide jurisdiction, or several locals which, collectively, would have statewide jurisdiction. Hamilton v. International Union of Operating Engineers, 262 S.W.2d 695, 1953 Ky. LEXIS 1126 ( Ky. 1953 ).

4. Elements of Violation.

It is clear that if a national or international union carries on activities in this state, through its locals and membership, without having the kind of local organizations required by this section, it has committed a violation of this section. Hamilton v. International Union of Operating Engineers, 262 S.W.2d 695, 1953 Ky. LEXIS 1126 ( Ky. 1953 ).

336.180. “Labor organization” defined.

As used in this chapter, unless the context requires otherwise:

  1. The term “labor organization” means any organization of any kind, or any agency or employee representation committee, association or union which exists for the purpose, in whole or in part, of dealing with employers concerning wages, rates of pay, hours of employment or conditions of work, or other forms of compensation;
  2. The term “employer” means all persons, firms, associations, corporations, public employers, public school employers, and public colleges, universities, institutions, and education agencies; and
  3. The term “public employee” means an employee of a “public agency” as that term is defined in KRS 61.870(1).

History. Enact. Acts 1962, ch. 303, § 1; 2017 ch. 1, § 2, effective January 9, 2017; 2017 ch. 6, § 2, effective January 9, 2017.

Legislative Research Commission Notes.

(1/9/2017). This statute was amended by 2017 Ky. Acts chs. 1 and 6, which do not appear to be in conflict and have been codified together.

336.190. Unlawful practice by carrier, shipper.

It shall be unlawful for any carrier or shipper of property, or any association of such carriers or shippers, to agree to pay or to pay, to or for the benefit of a labor organization, directly or indirectly, any charge by reason of the placing upon, delivery to, or movement by rail, or by a railroad car, of a motor vehicle, trailer or container which is also capable of being moved or propelled upon the highways.

History. Enact. Acts 1962, ch. 303, § 2.

336.200. Unlawful practice by labor organization.

It shall be unlawful for any labor organization to accept or receive or to agree to accept or receive from any carrier or shipper of property, or any association of such carriers or shippers, any payment described in KRS 336.190 .

History. Enact. Acts 1962, ch. 303, § 3.

336.210. Employees’ representatives to select plant physician or surgeon.

  1. If a plan or custom exists in any industry under which the employees contribute to the payment of any physician or surgeon for furnishing treatment, by deductions from their wages through the office of the employer, a meeting of such employees may be called by any ten (10) of them, as they consider best to bring to the notice of all employees affected that the meeting is to be held. Those at the meeting, by a majority determination, shall authorize two (2) of their number to represent all employees in that plant so affected, and when the management of the plant is notified by the employees of their action, it shall forthwith select two (2) persons to represent it.
  2. The persons selected shall meet and select a physician or surgeon for the plant. If no selection is made within three (3) days, all questions before them shall be referred to the secretary, who shall act as umpire. His or her decision shall be final. No physician or surgeon shall be employed and paid by deductions from the wages of employees except as provided in this section.
  3. Any physician or surgeon selected under this section shall be employed for a definite term, not to exceed four (4) years, and may be removed at any time for gross inefficiency or misconduct in the same manner in which he or she was selected.

History. Enact. Acts 1972, ch. 251, § 25; 2010, ch. 24, § 1724, effective July 15, 2010.

336.220. Cost of medical examination required by employer.

  1. It shall be unlawful for any employer to require any employee or applicant for employment to pay the cost of a medical examination or the cost of furnishing any records required by the employer as a condition of employment.
  2. As used in this section:
    1. The term “employer” means and includes an individual, a partnership, an association, a corporation, a legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air or express company doing business in or operating within the state.
    2. The term “employee” means and includes every person who may be permitted, required or directed by any employer, as defined in paragraph (a) of this subsection, in consideration of direct or indirect gain or profit, to engage in any employment.

History. Enact. Acts 1972, ch. 251, § 26.

Opinions of Attorney General.

This section does not apply to public employers and under KRS 161.145 the Board of Education is not required to pay the cost of physical examinations of bus drivers who work for the board. OAG 91-1 .

Elevator Inspections

336.510. Definitions. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.400 .

336.520. Inspectors — Certificates of competency — Application — Examination — Issuance — Reexamination. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.410 .

336.530. State elevator inspection program — Qualifications of director — Appointment of general inspectors. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.420 .

336.540. Employment of special inspectors. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.430 .

336.550. Suspension or revocation of certificates. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.440 .

336.560. Lost or destroyed certificates. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.450 .

336.570. Insurance company may inspect. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 239, § 7) was repealed by Acts 1978, ch. 123, § 7.

336.580. Inspection by general inspector. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 239, § 8; 1976, ch. 232, § 1) was repealed by Acts 1978, ch. 123, § 7.

336.590. Registration of elevators. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.460 .

336.600. Annual inspection. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.470 .

336.610. Report of inspection —Hearing on construction plans and specifications—Findings and orders of department. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.480 .

336.620. Rules and regulations. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.490 .

336.630. Safety equipment. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.500 .

336.640. Certificates of operation—Renewal. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.510 .

336.650. Permits for erection or repairs. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.520 .

336.660. Fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 239, § 16) was repealed by Acts 1976, ch. 232, § 10.

336.670. Prohibition. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.530 .

336.680. Enforcement — Notice of defective machinery. [Renumbered.]

Compiler’s Notes.

This section has been renumbered as KRS 198B.540 .

Rights of Employees

336.700. Prohibition against requiring waiver of statutory rights as a condition of employment — Exceptions — Arbitration agreements.

  1. As used in this section, “employer” means any person, either individual, corporation, partnership, agency, or firm, that employs an employee and includes any person, either individual, corporation, partnership, agency, or firm, acting directly or indirectly in the interest of an employer in relation to an employee; and “employee” means any person employed by or suffered or permitted to work for an employer.
  2. Notwithstanding any provision of the Kentucky Revised Statutes to the contrary and except as provided in subsection (3) of this section, no employer shall require as a condition or precondition of employment that any employee or person seeking employment waive or otherwise diminish any existing or future claim, right, or benefit to which the employee or person seeking employment would otherwise be entitled under any provision of the Kentucky Revised Statutes or any federal law.
  3. Notwithstanding subsection (2) of this section:
    1. Any employer may require an employee or person seeking employment to execute an agreement for arbitration, mediation, or other form of alternative dispute resolution as a condition or precondition of employment;
    2. Any employer may require a former employee to execute an agreement to waive an existing claim as a condition or precondition for the rehiring of the former employee as part of a settlement of pending litigation or other legal or administrative proceeding;
    3. Any employer may require an employee or person seeking employment to execute an agreement to reasonably reduce the period of limitations for filing a claim against the employer as a condition or precondition of employment, provided that the agreement does not apply to causes of action that arise under a state or federal law where an agreement to modify the limitations period is preempted or prohibited, and provided that such an agreement does not reduce the period of limitations by more than fifty percent (50%) of the time that is provided under the law that is applicable to the claim; and
    4. Any employer may require, as a condition or precondition of employment, an employee or person seeking employment to agree for the employer to obtain a background check or similar type of personal report on the employee or person seeking employment in conformance with a state or federal law that requires the consent of the individual prior to an employer’s receipt or use of such a report.
  4. An arbitration agreement executed by an employer and an employee or a candidate for employment under subsection (3)(a) of this section shall be subject to general contract defenses as may be applicable in a particular controversy, including fraud, duress, and unconscionability.
  5. In accordance with the Federal Arbitration Act, arbitration under subsection (3)(a) of this section shall safeguard the effective vindication of legal rights, including:
    1. Providing a reasonable location for the arbitration;
    2. Mutuality of obligation sufficient to support the agreement to arbitrate;
    3. Ensuring procedural fairness for the parties to access arbitration, including a fair process for selecting an impartial arbitrator and the equitable, lawful allocation of arbitration costs between the parties;
    4. Ensuring that the parties to the agreement shall have at least one (1) channel for the pursuit of a legal claim, either by requiring the claim to be arbitrated individually pursuant to the agreement or otherwise; and
    5. Empowering the arbitrator to award all types of relief for a particular type of claim that would otherwise be available for a party through judicial enforcement, including punitive damages as provided by law.
  6. An arbitrator selected to arbitrate an agreement entered into pursuant to this section shall disqualify himself or herself if he or she has any of the conflicts enumerated under KRS 26A.015(2).
  7. If an arbitration agreement fails to specify the manner of procedure to govern the arbitration process, such as, for example, by failing to designate arbitral protocols promulgated by the American Arbitration Association or similar organization, then the arbitrator shall use the Kentucky Rules of Civil Procedure in the conduct of the arbitration.
  8. This section shall apply prospectively and retroactively. Any provision of an agreement executed prior to June 27, 2019, that violates the requirements of subsection (3)(c) of this section shall be stricken from the agreement and shall not operate to invalidate the entire agreement.
  9. The provisions of this section shall not apply to collective bargaining agreements entered into between employers and the respective representatives of member employees.

History. Enact. Acts 1994, ch. 304, § 1, effective July 15, 1994; 1994, ch. 355, § 1, effective July 15, 1994; 2019 ch. 75, § 1, effective June 27, 2019.

NOTES TO DECISIONS

  1. Chemical Screening.
  2. Arbitration.
  3. Limitations period.
1. Chemical Screening.

Because an employee failed to show that the employer violated KRS 336.700(2) by requiring the employee to sign a chemical screening consent and release form, the trial court properly directed a verdict in favor of the employer on the issue of wrongful termination. McCown v. Gray Ky. TV, Inc., 295 S.W.3d 116, 2008 Ky. App. LEXIS 342 (Ky. Ct. App. 2008).

Case was remanded because plaintiffs’ state law claims were not preempted by § 301 of the Labor Management Relations Act of 1947 because their claims were based solely on rights created by state law under KRS 336.700(2), 337 and did not require substantial interpretation of the collective bargaining agreement. Defendants’ removal was also procedurally defective because the removal was untimely under 28 U.S.C.S. § 1446(b), and defendants waived the right to removal by affirmatively seeking relief in state court. Hughes v. UPS Supply Chain Solutions, Inc., 815 F. Supp. 2d 993, 2011 U.S. Dist. LEXIS 112770 (W.D. Ky. 2011 ).

2. Arbitration.

Trial court properly denied an employer's motion to compel arbitration because the arbitration agreement executed by the employer, a political subdivision, and an employee as a condition of her employment was unenforceable; the employer had no authority to enter into the arbitration agreement. N. Ky. Area Dev. Dist. v. Snyder, 2017 Ky. App. LEXIS 174 (Ky. Ct. App. May 12, 2017), aff'd on other grounds, 570 S.W.3d 531, 2018 Ky. LEXIS 363 ( Ky. 2018 ).

Commonwealth has expressly prohibited political subdivisions from requiring arbitration as a condition of employment, specifically including those submitting future actions for violations of state and federal statutory rights to arbitration; while in the private employment context federal law prevails, that federal law does not pre-empt the authority of the Commonwealth to deny the authority of its political subdivisions to enter into arbitration agreements in the employment context. N. Ky. Area Dev. Dist. v. Snyder, 2017 Ky. App. LEXIS 174 (Ky. Ct. App. May 12, 2017), aff'd on other grounds, 570 S.W.3d 531, 2018 Ky. LEXIS 363 ( Ky. 2018 ).

Although pre-empted by federal laws, the statute declares an express legislative intent to deprive state agencies and political subdivisions the power to enter into arbitration agreements as a condition of employment; that express denial of power is not pre-empted by any federal law, including the Federal Arbitration Act. N. Ky. Area Dev. Dist. v. Snyder, 2017 Ky. App. LEXIS 174 (Ky. Ct. App. May 12, 2017), aff'd on other grounds, 570 S.W.3d 531, 2018 Ky. LEXIS 363 ( Ky. 2018 ).

Court of Appeals properly affirmed a trial court’s order denying a state employer’s motion to compel enforcement of an arbitration agreement because, while the Court held that the FAA preempted Kentucky’s legislative enactment to preserve employee rights, the FAA did not apply to preempt Kentucky law inasmuch as no such discrimination occurred where the statute at issue did nothing to discriminate against arbitration clauses; it only prevented an employer from terminating or refusing to hire an individual who refused to agree to such a clause, the employer never had the power to force the employee to agree to arbitrate disputes arising between them as a condition of her employment, and the resulting arbitration agreement was void. N. Ky. Area Dev. Dist. v. Snyder, 570 S.W.3d 531, 2018 Ky. LEXIS 363 ( Ky. 2018 ).

3. Limitations period.

Under the plain language of the statute, the provision in a decedent’s employment application was not void as against public policy; in enacting the amendment to the statute, the General Assembly has clearly stated that the public policy of the Commonwealth permits an employment contract requiring an employee to accept a reduced limitation period for a cause of action arising out of the employment. Croghan v. Norton Healthcare, Inc., 2020 Ky. App. LEXIS 18 (Ky. Ct. App. Feb. 14, 2020).

By its express terms, the amended version of the statute applies to all contracts entered before or after the statute’s effective date of June 27, 2019; since the statutory limitation period for Kentucky Civil Rights Act claims is five years, the statute prohibits any shortening of the limitation period for such claims to less than two and a half years, and any contrary provision is not enforceable. Croghan v. Norton Healthcare, Inc., 2020 Ky. App. LEXIS 18 (Ky. Ct. App. Feb. 14, 2020).

Amendment to the statute was applicable because retroactive application of the statute would not impair an employer’s vested rights; by amending the statute, the legislature has simply specified the scope of the reasonableness inquiry. Croghan v. Norton Healthcare, Inc., 2020 Ky. App. LEXIS 18 (Ky. Ct. App. Feb. 14, 2020).

Trial court erred in granting summary judgment for an employer because the six-month period under subsection (3)(c) for bringing a claim arising out of a decedent’s employment was not enforceable with respect to an administrator’s Kentucky Civil Rights Act (KCRA) claims; the amendment to the statute was applicable, and the administrator’s KCRA claims were not barred by the six-month limitation period provided in the decedent’s employment contract. Croghan v. Norton Healthcare, Inc., 2020 Ky. App. LEXIS 18 (Ky. Ct. App. Feb. 14, 2020).

Trial court erred in granting summary judgment for an employer because six months was not a reasonable period to bring a Kentucky Civil Rights Act (KCRA) claim; the six-month period for filing a claim with the Kentucky Commission on Human Rights was not comparable to the six-month limitation period provided under a decedent’s contract. Croghan v. Norton Healthcare, Inc., 2020 Ky. App. LEXIS 18 (Ky. Ct. App. Feb. 14, 2020).

Penalties

336.985. Enforcement of civil penalties imposed in KRS Chapters 336, 337, and 339.

  1. The secretary, or any person authorized to act in his or her behalf, shall initiate enforcement of civil penalties imposed in KRS Chapters 336, 337, and 339.
  2. Any civil penalty imposed pursuant to KRS Chapter 336, 337, or 339 may be compromised by the secretary or the secretary’s designated representative. In determining the amount of the penalty or the amount agreed upon in compromise, the secretary, or the secretary’s designated representative, shall consider the appropriateness of the penalty to the size of the business of the person charged, the gravity of the violation, the number of times the person charged has been cited, and the good faith of the person charged in attempting to achieve compliance, after notification of the violation.
  3. If a civil penalty is imposed pursuant to this section, a citation shall be issued which describes the violation which has occurred and states the penalty for the violation. If, within fifteen (15) working days from the receipt of the citation, the affected party fails to pay the penalty imposed, the secretary, or any person authorized to act in his or her behalf, shall initiate a civil action to collect the penalty. The civil action shall be taken in the court which has jurisdiction over the location in which the violation occurred.

History. Enact. Acts 1990, ch. 42, § 1, effective July 13, 1990; 2010, ch. 24, § 1725, effective July 15, 2010.

336.990. Penalties.

  1. Upon proof that any person employed by the Labor Cabinet as a labor inspector has taken any part in any strike, lockout or similar labor dispute, the person shall forfeit his or her office.
  2. The following civil penalties shall be imposed, in accordance with the provisions in KRS 336.985 , for violations of the provisions of this chapter:
    1. Any person who violates KRS 336.110 or 336.130 shall for each offense be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000);
    2. Any corporation, association, organization, or person that violates KRS 336.190 and 336.200 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense. Each act of violation, and each day during which such an agreement remains in effect, shall constitute a separate offense;
    3. Any employer who violates the provisions of KRS 336.220 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each violation; and
    4. Any labor organization who violates KRS 336.135 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense.
  3. Any labor organization, employer, or other person who directly or indirectly violates 336.130(3) shall be guilty of a Class A misdemeanor.
  4. Any person aggrieved as a result of any violation or threatened violation of 336.130(3) may seek abatement of the violation or threatened violation by petitioning a court of competent jurisdiction for injunctive relief and shall be entitled to costs and reasonable attorney fees if he or she prevails in the action.
  5. Any person injured as a result of any violation or threatened violation of 336.130(3) may recover all damages resulting from the violation or threatened violation and shall be entitled to costs and reasonable attorney fees if he or she prevails in the action.

History. 33a-8, 33a-13: amend. Acts 1962, ch. 303, § 4; 1972, ch. 251, § 27; 1974, ch. 239, § 19; 1990, ch. 42, § 2, effective July 13, 1990; 2010, ch. 24, § 1726, effective July 15, 2010; 2017 ch. 1, § 3, effective January 9, 2017; 2017 ch. 6, § 3, effective January 9, 2017.

Legislative Research Commission Notes.

(1/9/2017). This statute was amended by 2017 Ky. Acts chs. 1 and 6, which do not appear to be in conflict and have been codified together.

CHAPTER 337 Wages and Hours

337.010. Definitions for chapter and specific ranges in chapter.

  1. As used in this chapter, unless the context requires otherwise:
    1. “Commissioner” means the commissioner of the Department of Workplace Standards under the direction and supervision of the secretary of the Labor Cabinet;
    2. “Department” means the Department of Workplace Standards in the Labor Cabinet;
      1. “Wages” includes any compensation due to an employee by reason of his or her employment, including salaries, commissions, vested vacation pay, overtime pay, severance or dismissal pay, earned bonuses, and any other similar advantages agreed upon by the employer and the employee or provided to employees as an established policy. The wages shall be payable in legal tender of the United States, checks on banks, direct deposits, or payroll card accounts convertible into cash on demand at full face value, subject to the allowances made in this chapter. However, an employee may not be charged an activation fee and the payroll card account shall provide the employee with the ability, without charge, to make at least one (1) withdrawal per pay period for any amount up to and including the full account balance. (c) 1. “Wages” includes any compensation due to an employee by reason of his or her employment, including salaries, commissions, vested vacation pay, overtime pay, severance or dismissal pay, earned bonuses, and any other similar advantages agreed upon by the employer and the employee or provided to employees as an established policy. The wages shall be payable in legal tender of the United States, checks on banks, direct deposits, or payroll card accounts convertible into cash on demand at full face value, subject to the allowances made in this chapter. However, an employee may not be charged an activation fee and the payroll card account shall provide the employee with the ability, without charge, to make at least one (1) withdrawal per pay period for any amount up to and including the full account balance.
      2. For the purposes of calculating hourly wage rates for scheduled overtime for professional firefighters, as defined in KRS 95A.210(8), “wages” shall not include the distribution to qualified professional firefighters by local governments of supplements received from the Firefighters Foundation Program Fund. For the purposes of calculating hourly wage rates for unscheduled overtime for professional firefighters, as defined in KRS 95A.210(9), “wages” shall include the distribution to qualified professional firefighters by local governments of supplements received from the Firefighters Foundation Program Fund;
    3. “Employer” is any person, either individual, corporation, partnership, agency, or firm who employs an employee and includes any person, either individual, corporation, partnership, agency, or firm acting directly or indirectly in the interest of an employer in relation to an employee; and
    4. “Employee” is any person employed by or suffered or permitted to work for an employer, except that:
      1. Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisee, neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purpose under this chapter; and
      2. Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisor, neither a franchisor nor a franchisor’s employee shall be deemed to be an employee of the franchisee for any purpose under this chapter.
  2. As used in KRS 337.275 to 337.325 , 337.345 , and 337.385 to 337.405 , unless the context requires otherwise:
    1. “Employee” is any person employed by or suffered or permitted to work for an employer, but shall not include:
      1. Any individual employed in agriculture;
      2. Any individual employed in a bona fide executive, administrative, supervisory, or professional capacity, or in the capacity of outside salesman, or as an outside collector as the terms are defined by administrative regulations of the commissioner;
      3. Any individual employed by the United States;
      4. Any individual employed in domestic service in or about a private home. The provisions of this section shall include individuals employed in domestic service in or about the home of an employer where there is more than one (1) domestic servant regularly employed;
      5. Any individual classified and given a certificate by the commissioner showing a status of learner, apprentice, worker with a disability, sheltered workshop employee, and student under administrative procedures and administrative regulations prescribed and promulgated by the commissioner. This certificate shall authorize employment at the wages, less than the established fixed minimum fair wage rates, and for the period of time fixed by the commissioner and stated in the certificate issued to the person;
      6. Employees of retail stores, service industries, hotels, motels, and restaurant operations whose average annual gross volume of sales made for business done is less than ninety-five thousand dollars ($95,000) for the five (5) preceding years exclusive of excise taxes at the retail level or if the employee is the parent, spouse, child, or other member of his or her employer’s immediate family;
      7. Any individual employed as a baby-sitter in an employer’s home, or an individual employed as a companion by a sick, convalescing, or elderly person or by the person’s immediate family, to care for that sick, convalescing, or elderly person and whose principal duties do not include housekeeping;
      8. Any individual engaged in the delivery of newspapers to the consumer;
      9. Any individual subject to the provisions of KRS Chapters 7, 16, 27A, 30A, and 18A provided that the secretary of the Personnel Cabinet shall have the authority to prescribe by administrative regulation those emergency employees, or others, who shall receive overtime pay rates necessary for the efficient operation of government and the protection of affected employees;
      10. Any employee employed by an establishment which is an organized nonprofit camp, religious, or nonprofit educational conference center, if it does not operate for more than two hundred ten (210) days in any calendar year;
      11. Any employee whose function is to provide twenty-four (24) hour residential care on the employer’s premises in a parental role to children who are primarily dependent, neglected, and abused and who are in the care of private, nonprofit childcaring facilities licensed by the Cabinet for Health and Family Services under KRS 199.640 to 199.670 ;
      12. Any individual whose function is to provide twenty-four (24) hour residential care in his or her own home as a family caregiver and who is approved to provide family caregiver services to an adult with a disability through a contractual relationship with a community board for mental health or individuals with an intellectual disability established under KRS 210.370 to 210.460 , or is certified or licensed by the Cabinet for Health and Family Services to provide adult foster care; or
      13. A direct seller as defined in Section 3508(b)(2) of the Internal Revenue Code of 1986.
    2. “Agriculture” means farming in all its branches, including cultivation and tillage of the soil; dairying; production, cultivation, growing, and harvesting of any agricultural or horticultural commodity; raising of livestock, bees, furbearing animals, or poultry; and any practice, including any forestry or lumbering operations, performed on a farm in conjunction with farming operations, including preparation and delivery of produce to storage, to market, or to carriers for transportation to market;
    3. “Gratuity” means voluntary monetary contribution received by an employee from a guest, patron, or customer for services rendered;
    4. “Tipped employee” means any employee engaged in an occupation in which he or she customarily and regularly receives more than thirty dollars ($30) per month in tips; and
    5. “U.S.C.” means the United States Code.

For purposes of this paragraph, “franchisee” and “franchisor” have the same meanings as in 16 C.F.R. sec. 436.1.

History. 1599c-4, 1599c-39, 2290c-1, 2290c-2, 4767a-1, 4767a-17: amend. Acts 1966, ch. 158, § 1; 1968, ch. 100, § 6; 1970, ch. 33, § 1; 1974, ch. 341, § 1; 1974, ch. 391, § 1; 1976, ch. 223, § 1; 1978, ch. 141, § 1, effective June 17, 1978; 1978, ch. 340, § 1, effective June 17, 1978; 1982, ch. 54, § 1, effective July 15, 1982; 1984, ch. 414, § 12, effective July 13, 1984; 1986, ch. 208, § 2, effective July 15, 1986; 1994, ch. 405, § 85, effective July 15, 1994; 1994, ch. 492, § 1, effective July 15, 1994; 1996, ch. 48, § 1, effective July 15, 1996; 1996, ch. 100, § 1, effective July 15, 1996; 1996, ch. 115, § 1, effective July 15, 1996; 1998, ch. 154, § 92, effective July 15, 1998; 1998, ch. 426, § 558, effective July 15, 1998; 1998, ch. 606, § 113, effective July 15, 1998; 2003, ch. 166, § 3, effective June 24, 2003; 2005, ch. 99, § 67, effective June 20, 2005; 2009, ch. 33, § 4, effective March 20, 2009; 2010, ch. 24, § 1727, effective July 15, 2010; 2012, ch. 146, § 113, effective July 12, 2012; 2017 ch. 3, § 5, effective January 9, 2017; 2020 ch. 2, § 1, effective July 15, 2020.

Legislative Research Commission Notes.

(3/25/19). 2019 Ky. Acts ch. 67, sec. 1, amended KRS 95A.210 to add new subsections and to change the internal numbering of others. KRS 337.010(1) cites KRS 95A.210 (5) and 95A.210(6). It is clear from the context that in this section KRS 95A.210(5) should have been changed to KRS 95A.210(8) to conform, and that KRS 95A.210(6) should have been changed to KRS 95A,210(9) to conform. These errors have been corrected in codification under the authority of KRS 7.136 .

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 3, 24, 96, and 134, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

Analysis

  1. Public Authority.
  2. Public Works.
  3. Medical Director.
  4. Sovereign Immunity.
  5. Recoupment of Commissions.
  6. Preemption of Contract Claims.
  7. Employees.
  8. Payment of “Earned Bonuses”.
  9. Judicial estoppel.
  10. Municipal Corporations.
  11. Employer.
1. Public Authority.

Where the hospital on which renovation work was to be done, was owned by the county, was built on property owned by the county, and was run on a day-to-day basis by a nonprofit corporation whose board of directors was appointed by and served at the pleasure of the county fiscal court, the nonprofit corporation was merely an alter ego of the county fiscal court and therefore constituted a public authority which was required to pay the prevailing wage rates on the renovation project. Hardin Memorial Hospital, Inc. v. Land, 645 S.W.2d 711, 1983 Ky. App. LEXIS 277 (Ky. Ct. App. 1983).

2. Public Works.

Although a municipal water company was wholly owned by the city, its managing board was appointed by the mayor and elected officials of the city, and it paid no income taxes or property taxes and it furnished water to the city free of charge, the water company was not a “city” within the meaning of subdivision (3)(e) of this section; therefore, the water company was not exempt from paying the prevailing wage rates. Louisville Water Co. v. Wells, 664 S.W.2d 525, 1984 Ky. App. LEXIS 464 (Ky. Ct. App. 1984).

Where the jail construction moneys were not derived from any Commonwealth appropriation or Commonwealth trust or agency account, revenue generated by the sale of bonds by the Local Correctional Facilities construction Authority to construct detention facilities were not Commonwealth funds, thus eliminating the application of the prevailing wage law to the construction contract pursuant to subdivision (3)(e) of this section. Wells v. Kentucky Local Correctional Facilities Constr. Authority, 730 S.W.2d 951, 1987 Ky. App. LEXIS 499 (Ky. Ct. App. 1987).

3. Medical Director.

A medical director of a medical health plan was not excepted from recovery under KRS 337.385 because he was “employed in a bona fide executive, administrative, supervisory or professional capacity,” under subdivision (2) of this section because the context “required otherwise;” it is just as unlawful to fail to pay or to withhold a part of the salary of an executive, administrative, supervisory or professional employee as it would be to do so in the case of any other type of employee. Healthcare of Louisville v. Kiesel, 715 S.W.2d 246, 1986 Ky. App. LEXIS 1214 (Ky. Ct. App. 1986).

4. Sovereign Immunity.

Where county employees alleged that the county violated the Fair Labor Standards Act, 29 USCS § 201 et seq., and the Kentucky Wages and Hours Act, KRS ch. 337, their state law claims were barred by sovereign immunity, which was not waived by KRS 337.010(2)(a)(9). Crawford v. Lexington-Fayette Urban County Gov't, 2007 U.S. Dist. LEXIS 2567 (E.D. Ky. Jan. 9, 2007).

5. Recoupment of Commissions.

Judgment ordering an employer to return recouped commissions to its employees was improper because, although the possibility that the commissions could later have been recouped under certain circumstances did not transform them into advances, the employees had agreed that the commissions would be debited if an account stopped paying within a 12 month period; the wages agreed upon included this charge back provision. Therefore, the recoupment was not of wages “agreed upon,” and did not violate KRS 337.060 . AT&T Corp. v. Fowler, 2007 Ky. App. LEXIS 339 (Ky. Ct. App.), sub. op., 2007 Ky. App. Unpub. LEXIS 209 (Ky. Ct. App. Sept. 14, 2007).

6. Preemption of Contract Claims.

In the absence of any Kentucky decision indicating that the Kentucky Wages and Hours Act, KRS 337.010 et seq., preempted contract claims, the court was reluctant to predict that such a significant restriction upon the common law of contract was in the offing. Dodd v. Dyke Indus., 2008 U.S. Dist. LEXIS 34786 (W.D. Ky. Apr. 25, 2008).

7. Employees.

Defendant was entitled to partial summary judgment on plaintiffs’ claims for overtime wages under the Fair Labor Standards Act, 29 U.S.C.S. § 207, and the Kentucky Wages and Hours Act (KWHA), KRS 337.285(1), because plaintiffs were employed in a “bona fide administrative capacity,” and fell within the overtime wage exemption of 29 U.S.C.S. § 213(a)(1), and outside of the scope of “employee” under KRS 337.010(2)(a)(2). Because it appeared that the protections of KRS 337.385(1) and 337.055 might not apply to plaintiffs because they fell outside of the scope of “employee” as defined in the KWHA, the court reserved ruling on plaintiffs’ claims for unpaid wages and liquidated damages under KRS 337.385(1) and 337.055 and requested briefing on the issue. Fox v. Lovas, 2012 U.S. Dist. LEXIS 27908 (W.D. Ky. Mar. 1, 2012).

Store managers were properly considered supervisors under KRS 337.010(2) and 803 Ky. Admin. Regs. 1:070 § 5 where they regularly and customarily set employees’ schedules, ensured that employees unloaded weekly truck shipments, directed at least four half-time employees, their most important duties were ensuring that the retail store ran smoothly and that company policies were followed, and they were relatively free from direct personal supervision. Barker v. Family Dollar, Inc., 2012 U.S. Dist. LEXIS 153331 (W.D. Ky. Oct. 25, 2012).

Trial court did not err in denying the employee’s motion for a directed verdict where there was conflicting testimony as to the qualifications and knowledge needed, and thus, the issue of whether he was a bona fide professional was properly before the jury. Hunziker v. AAPPTec, LLC, 2020 Ky. App. LEXIS 49 (Ky. Ct. App. Apr. 24, 2020).

8. Payment of “Earned Bonuses”.

Employee's wage payment claim was properly dismissed because the employer had paid the employees all monies owed to him as of the date his employment terminated, the employee's claims for short-term and long-term incentive compensation and vacation and holiday pay failed, and because the employee's temporary-living-expenses claim was connected to his relocation, not his continued employment, it did not fall within the meaning of “wages.” Vogel v. E.D. Bullard Co., 597 Fed. Appx. 817, 2014 FED App. 0949N, 2014 U.S. App. LEXIS 24665 (6th Cir. Ky. 2014 ).

9. Judicial estoppel.

Partial summary judgment was denied to two employers in several employees’ claims under the Fair Labor Standards Act, 29 U.S.C.S. § 201 et seq., and the Kentucky Wages and Hours Act, KRS 337.010 et seq., because a failure to identify the claims in bankruptcy filings did not mean that they were precluded by judicial estoppel. Two employees could not have been charged with having known of their claims at the time they filed for bankruptcy, and a third employee’s swift amendment of his bankruptcy filings worked in his favor. Finney v. Free Enter. Sys., 2011 U.S. Dist. LEXIS 33858 (W.D. Ky. Mar. 29, 2011).

10. Municipal Corporations.

Both cities and counties were subject to the wage and hour requirements of Kentucky law, including the pay that local firefighters received as part of an incentive to upgrade their training. Municipal corporations were included under that law and did not have immunity from it since the definition of “employer” found in KRS 337.010(1)(d) expressly included corporations and a municipal corporation was a corporation. Madison County Fiscal Court v. Ky. Labor Cabinet, 352 S.W.3d 572, 2011 Ky. LEXIS 114 ( Ky. 2011 ).

Case was remanded because plaintiffs’ state law claims were not preempted by § 301 of the Labor Management Relations Act of 1947 because their claims were based solely on rights created by state law under KRS 336.700(2), 337 and did not require substantial interpretation of the collective bargaining agreement. Defendants’ removal was also procedurally defective because the removal was untimely under 28 U.S.C.S. § 1446(b), and defendants waived the right to removal by affirmatively seeking relief in state court. Hughes v. UPS Supply Chain Solutions, Inc., 815 F. Supp. 2d 993, 2011 U.S. Dist. LEXIS 112770 (W.D. Ky. 2011 ).

11. Employer.

Plain language of Ky. Rev. Stat. Ann. § 337.010 (1)(d) supported the employee’s position that an LLC member was an employer for purposes of the Kentucky Wages and Hours Act, Ky. Rev. Stat. Ann. § 337.010 et seq. A remand was warranted as the trial court did not consider the language of the statute, and a conflict with LLC law was not a valid reason to grant a directed verdict in favor of the LLC member. Hunziker v. AAPPTec, LLC, 2020 Ky. App. LEXIS 49 (Ky. Ct. App. Apr. 24, 2020).

Cited:

Burrow v. Kapfhammer, 284 Ky. 753 , 145 S.W.2d 1067, 1940 Ky. LEXIS 577 ( Ky. 1940 ); Charos v. Jent, 293 Ky. 50 , 168 S.W.2d 334, 1943 Ky. LEXIS 553 (1943); Young v. Willis, 305 Ky. 201 , 203 S.W.2d 5, 1947 Ky. LEXIS 773 ( Ky. 1947 ); Baughn v. Gorrell & Riley, 311 Ky. 537 , 224 S.W.2d 436, 1949 Ky. LEXIS 1155 ( Ky. 1949 ); Middlekamp v. Willis, 253 S.W.2d 631, 1952 Ky. LEXIS 1123 ( Ky. 1952 ); Chumley v. Cox, 311 S.W.2d 185, 1958 Ky. LEXIS 177 ( Ky. 1958 ); Kerth v. Hopkins County Board of Education, 346 S.W.2d 737, 1961 Ky. LEXIS 328 ( Ky. 1961 ); Board of Trustees v. Public Employees Council No. 51 American Federation of States, etc, 571 S.W.2d 616, 1978 Ky. LEXIS 393 ( Ky. 1978 ); Commonwealth v. Gussler, 278 S.W.3d 153, 2008 Ky. App. LEXIS 251 (Ky. Ct. App. 2008).

Notes to Unpublished Decisions

Analysis

  1. Employees.
  2. Payment of “earned bonuses”.

7. Employees.

1. Employees.

Unpublished decision: In a given case, an otherwise exempt employee can recover under KRS 337.385 notwithstanding the limitations stated in KRS 337.010 if the context requires otherwise, but there was no evidence of a unique context that warranted an exception from the statutory provisions in the case of a professional electrical engineer who, in performing his tasks as a corporate quality manager, used his engineering skills, his analytic skills and considerable independent judgment to succeed in his work. He supervised others and made employment decisions. Whitewood v. Robert Bosch Tool Corp., 323 Fed. Appx. 397, 2009 FED App. 0227N, 2009 U.S. App. LEXIS 6227 (6th Cir. Ky. 2009 ).

2. Payment of “earned bonuses”.

Unpublished decision: Where plaintiff former employee sued defendant former employer alleging a failure to pay an earned bonus under KRS 337.055 , while the term “wages” included “earned bonuses” within its definition under KRS 337.010(1)(c), because the bonus plan awarded bonuses if the company reached certain target levels of performance, which referred to the employer’s performance during each fiscal year, and the employee had worked for only four months of the fiscal year, and the employer offered evidence that it did not award, and had never awarded, pro rata bonuses, summary judgment in favor of the employer was affirmed. Guagenti v. James N. Gray Co., 105 Fed. Appx. 717, 2004 U.S. App. LEXIS 14350 (6th Cir. Ky. 2004 ).

7. Employees.

Unpublished decision: On an employee's claim that his employer violated Ky. Rev. Stat. Ann. § 337.385 when it failed to pay him severance and benefits, the employee did not identify context and equities of his particular case which would overcome this statute's exclusion of individuals employed in a bona fide executive, administrative, supervisory, or professional capacity. Because the employee failed to show that the “context required otherwise,” the district court did not err in granting the employer summary judgment on this claim. Hackney v. Lincoln Nat'l Fire Ins. Co., 657 Fed. Appx. 563, 2016 FED App. 0592N, 2016 U.S. App. LEXIS 19989 (6th Cir. Ky. 2016 ).

Opinions of Attorney General.

A water commission of a county would be governed by the terms of KRS Chapter 337. OAG 65-312 .

Minimum wage and maximum hour provisions do not apply to county jail deputies. OAG 67-333 .

If the federal government has not set a prevailing wage on a project, the Kentucky prevailing wage would apply. Common sense does not allow the conclusion that the General Assembly would establish these elaborate procedures and safeguards to insure a fair wage for laborers and mechanics and then disregard this idea simply because federal funds are involved. OAG 68-362 .

Since the contract between the public authority and the contractor provides that if the Kentucky prevailing wage rate is higher than the federal government’s, the Kentucky rate will be paid, and the Department of Labor is given the duty of administering and enforcing KRS 337.510 to 337.550 by the statute, the Department of Labor has jurisdiction to enforce a contract that agrees to adopt the provisions of KRS 337.510 to 337.550 rather than the lower federal prevailing rate. OAG 68-362 .

Since they do not perform work which aids in enhancing or completing the actual construction of a project, night watchmen and guards employed by a contractor engaged in public works projects are not included under provisions of the prevailing wage law. OAG 73-429 .

Since the federal basic minimum wage is higher than the state minimum wage under KRS 337.275 , the federal law applies to state and local employees, but since the state law has a lower workweek before overtime provisions apply to state and local employees, including policemen, firemen, and security officers under KRS 337.285 , the state law as to overtime is applicable and, pursuant to KRS 337.050 , state and local employees who work seven (7) days in any one (1) work week must be paid time and a half for the seventh day. OAG 74-532 .

The Kentucky Minimum Wage Law covers all state and local governmental agencies regardless of the number of employees as there is no exclusion in the law for governmental units employing less than a certain number of people. OAG 74-559 .

This law does not apply to volunteer firemen as they are not considered employees. OAG 74-559 .

If a fire chief is paid a salary and supervises no employee, he must be paid the state or federal minimum wage, whichever is higher, unless he meets the criteria of an executive, administrative, supervisory or professional category under subdivision (2)(c)(ii) (now subdivision (2)(a) 2.) of this section, in which case he would not have to be paid overtime. OAG 74-559 .

If a city chief of police on 24-hour call seven (7) days a week and receiving $400 per month plus the use of a city apartment meets the definition of an executive, administrative, supervisory or professional employee under subdivision (2)(c)(ii) (now subdivision (2)(a)2.) of this section, he should be excluded from the Kentucky minimum wage law, and by implication from the overtime provisions, but if he does not meet the definition, then he must be paid minimum wages and be covered for overtime. OAG 74-602 .

All automobile dealerships which do $95,000 gross annual sales, exclusive of excise taxes, are covered under the state minimum wage law. Automobile salesmen are excluded both from the state minimum wage and the overtime section of the law. Parts managers are covered by the minimum wage but are excluded from the overtime provisions, and mechanics are neither excluded from the minimum wage nor the overtime provisions and must be paid time and a half their regular rate of pay for all hours worked in excess of forty hours per workweek. OAG 74-777 .

Tobacco workers employed not by farmers but by warehousemen and engaged in stripping, grading, buying, stemming, sorting, redrying, packing and storing tobacco are not “employed in agriculture” within the exemption provision of subdivision (2)(c)(i) (now subdivision (2)(a)2.) of this section and are entitled to the minimum wage and overtime provisions of KRS 337.275 and 337.285 . OAG 75-55 .

An election officer is not an “employee” pursuant to subdivision (2)(c) (now subdivision (2)(a)) of this section and therefore is not subject to KRS 337.275 which would require payment of a minimum wage. OAG 75-664 .

Part-time deputy marshals of a city are entitled to the state minimum wage as there is no exclusion for part-time employees. OAG 75-692 .

A police officer’s hourly wage rate and what he receives through the city’s participation in the K.L.E.F.P.F. program must both be included in the officer’s total compensation in order to arrive at a rate upon which overtime compensation can be computed. OAG 76-361 .

Although the Council of State Governments is exempt from taxes of Kentucky, the Council is not exempt from the Kentucky minimum wage law and employees who do not fall in exempt categories would be subject to Kentucky’s minimum wage and overtime provisions. OAG 76-530 .

The Elizabethtown Public Properties Holding Company, Inc. does not fall within the definition of public authority as that term is defined in subsection (3)(d) of this section and any construction performed under its jurisdiction is not required to meet the requirements of the prevailing wage law. OAG 76-638 .

Housemothers and housefathers in dormitories or homes operated by an alternative residential program and owned by the local school board would not be exempt from state minimum and overtime wages as domestic servants or babysitters in the private home of the employer. OAG 77-782 .

In order for the Preservation Alliance of Louisville and Jefferson County to be involved in prevailing wage work, it must act as an agency and instrumentality of the government and the construction must be of public building facilities; in the activity of restoring private homes to private individuals, there is no construction of public building facilities essential to the definition of “public authority.” OAG 78-604 .

A companion to a sick and elderly person need not be the employee of the sick and elderly person, but must actually live in the same domicile that the sick and elderly person resides in; merely staying 24 hours with that person will not constitute “living in.” OAG 78-699 .

If X company hires the babysitter, pays the wages and receives a fee from the homeowner (which is greater than the employee’s wages), decides what hours the employee works, and how much he is paid, X company is the employer, and the employee does not babysit in the employer’s home but in the home of the employer’s client or customer, then the exclusion for babysitters does not apply; if X company is merely a broker, a properly licensed private employment agency who merely refers babysitters to employing homeowners, has no control over wages or hours worked, nor pays the employee, the exclusion can apply to the wages of the employee because there the employer is the householder. OAG 78-699 .

In the case of a babysitter, the exclusion to the general requirement of payment of minimum wages or overtime pay is allowable only where the babysitter is employed in the home of the employer and if the employer is the supplying company and not the person for whom the babysitter sits, no exclusion is permitted. OAG 78-699 .

There is no legal distinction under the wording of the statute between an individual third party who hires the companion to the sick or elderly or a corporation who furnishes such companion, even though the companion is the employee of the corporation, rather than an employee of the sick and elderly person. OAG 78-699 .

The minimum wage law does not affect teachers and other certified school personnel since they are exempted as “professional” employees. OAG 79-337 .

Where a prospective babysitter for handicapped children is placed in training by the council for retarded citizens before inclusion on the council’s registry, that would constitute a student-teacher situation not an employment situation, and such a training period would not constitute employment subject to the state minimum wage law. OAG 80-196 .

Where babysitting takes place in the babysitter’s home rather than the employer’s, the exclusion in subdivision (2)(a)(vii) (now subdivision (2)(a)7.) of this section does not apply; however, the babysitter becomes an independent contractor of a business and falls under the retail service situation so that as long as the babysitter does not have gross sales of $95,000 per year, the babysitter would not have to be paid the state minimum wage. OAG 80-196 .

The term “employer” applied in KRS 337.060 includes all employers in Kentucky, as encompassed in this section rather than being limited to employers covered by state or federal minimum wage laws. OAG 81-14 .

Police officers, including the chief of police, are considered employees under the wage and hour law, particularly subdivision (2)(a)(ii) (now subdivision (2)(a)2.) of this section; however, the fact that these officers are considered “employees” insofar as the wage and hour law is concerned does not mean that they are to be considered for all other purposes, municipal employees rather than officers. OAG 81-48 .

Moneys paid to firemen under the Professional Fire Fighters Foundation Program Fund on a regular basis as incentive pay are “wages” under this section since it is an advantage agreed upon by the employee or employer as an established policy; accordingly, these moneys would be part of his regular base pay and utilized in determining the amount of his overtime pay when he works over 40 hours per week. OAG 81-260 .

The manufacture of products by prisoners in a private production center on the prison grounds would not constitute public works or public construction within the meaning of subsection (3) of this section which would entitle the prisoners to the prevailing wage pursuant to KRS 337.505 . OAG 81-411 .

Deputy sheriffs are subject to time and a half for employment in excess of 40 hours. OAG 82-118 .

This section does not exclude county employees. OAG 82-118 .

Acts 1982, ch. 54, amending KRS 337.505 , 337.520 , 337.530 , and this section, relating to prevailing wages, is applicable to construction projects carried on by the Kentucky Local Correctional Facilities Construction Authority. OAG 82-314 .

The prevailing wage law in effect on the date of advertisement is the applicable law for that project and governmental entity. OAG 82-368 .

Any attempt to avoid the prevailing wage provisions in building a facility (not a learning building) by simply including it in a learning building project, would violate the prevailing wage law. OAG 82-480 .

By the plain language of subdivision (3)(e) of this section defining “public works,” source of funds is not germane to the determination of whether buildings constructed as institutions of learning are exempt so long as the public works construction project is for a learning building. OAG 82-480 .

Under the 1982 amendments of the definitions of “construction” and “public works,” prevailing wages need not be paid on a public works construction project that will cost less than $250,000; with a public works construction project in the form of buildings to be used as institutions of learning, irrespective of costs and irrespective of source of funds utilized, prevailing wages need not be paid. With a public works construction project, other than for buildings to be used as institutions of learning, in an amount exceeding $250,000, prevailing wages need be paid only if 50 percent or more of the project is being financed with state funds. OAG 82-480 .

Under the 1982 amendments to this section, “buildings constructed as institutions of learning” are excluded from the definition of “public works” with the result being that prevailing wages need not be paid in constructing such buildings; such buildings could include adjunct facilities when such adjunct facilities are all a part of the “learning building” project and are all a part of one (1) contract. The General Assembly did not intend that support facilities such as sewers, sewage disposal plants, access roads and the like necessary for the complete utilization of the learning buildings are to be treated differently than the learning building structure itself. OAG 82-480 .

Since a county housing authority is a separate governmental entity and not part of a county itself, it is not exempted under subsection (3)(e) of this section and is required to pay the prevailing wage. Further, KRS 80.500 still requires the payment of minimum wages in contracts. OAG 82-560 .

The jailer is the “employer” of the jail matron under subsection (1)(d) of this section, since he employs the “employees,” who are the jail deputies, including the matron; county deputies to constitutional officers, including jailer deputies, are not listed in the exceptions to the definition of “employee,” for purpose of the wages and hours law, provided under subsection (2)(a) of this section. OAG 82-625 .

If a county jailer employs a matron who is of no relation to the jailer, he must carefully determine whether the time in excess of a 40 hour week is “actually necessary”; where the overtime is not shown to be actually necessary in the exercise of the deputy’s or matron’s public function, such overtime would not be valid against the “jail” budget or the general county budget. Where overtime is not shown to be in the “public good,” this is equivalent to saying that the extra time is not necessary. OAG 82-625 .

KRS 337.285 , providing for time and a half for employment in excess of 40 hours, applies to the jailer as employer and the jail matron as an employee of the jailer; however, if the jail matron is the wife of the jailer, then under subdivision (2)(a)(vi) (now subdivision (2)(a) 6.) of this section, such a spouse of the employer would be exempt from the operation of KRS Chapter 337 since, under that subsection a spouse of the employer is expressly exempt. OAG 82-625 .

The determination of whether overtime is actually necessary is a responsibility of the jailer and lies within his sound discretion. OAG 82-626 .

The jailer should authorize work in excess of 40 hours (per week) only where necessary; where it is shown that a jailer is guilty of mismanagement in authorizing an “overtime situation,” he would be personally liable, and liable on his bond for the payment of the overtime to the deputy or matron and the claim would not be payable from the jail fund or county treasury. Where the overtime is necessary, the claim for overtime must now be paid from the jail fund, or from the county treasury generally, where there are no jail budget funds to pay it. OAG 82-626 .

A deputy jailer and matron are public officers, generally, as well as being employees under KRS Chapter 337. OAG 82-626 .

Even prior to the effective date of Acts 1982, c. 385, the jailer was the “employer” and the deputy jailer was the “employee” under subsection (1)(d) and (e) of this section; the deputy jailer is not exempt from KRS Chapter 337, unless the deputy jailer (matron) was the wife, child or other member of the jailer’s immediate family. OAG 82-626 .

The term “state funds” as formerly used in subdivision (3)(e) of this section includes any funds which come from the state treasury even though the moneys may be earmarked by statute for a particular agency, state or county; if a local project has received a 50% or more contribution from the state treasury for construction of a prevailing wage project, the prevailing wage law is applicable. OAG 83-374 .

Where employer initiated a pay system wherein all payroll checks are directly deposited in a local banking institution without the express permission of the involved employees and monthly service charges were assessed by the bank in the event the employee/depositor failed to maintain a certain minimum balance such plan would violate subdivision (1)(c) of this section, KRS 337.020 , and 337.060 because the employee would be required to pay a fee to the bank should he wish to withdraw his entire balance as such withdrawal would give him less than the required minimum balance at the end of the month. The present plan was illegal, because the employee was not receiving his full pay, but must pay a charge to the bank in order to obtain his entire pay for the affected pay period. OAG 83-459 .

County constitutional officers with deputies have the authority to authorize their deputies to work in excess of a 40-hour workweek, where it is reasonably necessary to carry out the statutory duties of the constitutional officer. OAG 84-183 .

The actual determination of whether overtime work is necessary rests with the employer, i.e., the constitutional officer who appointed the deputy and who pays the deputy’s salary out of the fees of his office. OAG 84-183 .

The fiscal court has no authority to require its approval for overtime work of deputies of local constitutional officers where the deputy’s salary is paid out of the sheriff’s fees. OAG 84-183 .

In the event that the salary of the deputy sheriff is paid out of the county treasury, the fiscal court would not become the “employer” under KRS Chapter 337, but it would have the authority to approve or disapprove of overtime payment of such deputy, where the overtime pay is to come out of the county treasury; the fiscal court, under its powers given in KRS 67.080 , would have the authority, in passing on such expenditure from the county treasury, to use its sound judgment as to whether the overtime was lawfully authorized by the sheriff. The employer in this situation is the constitutional officer, i.e., the sheriff, who is the actual employer under subdivision (1)(d) of this section; the actual employer, as such, hires, fires, and directs the deputy in his statutory duties. OAG 84-183 .

For purposes of the Prevailing Wage Law, the Lexington-Fayette Urban County Airport Board was not excluded or exempted from the payment of prevailing wages pursuant to subdivision (3)(e) of this section, because it was not a city, not a county, and not an urban county government. OAG 86-73 .

In order to comply with Kentucky’s prevailing wage laws, the estimated cost of a public construction project must be determined by the notification of the project’s estimated cost submitted by the public authority to the Department of Workplace Standards. OAG 10-008 , 2010 Ky. AG LEXIS 213.

Research References and Practice Aids

Cross-References.

Apprenticeship, KRS Chapter 343.

Child labor, KRS Chapter 339.

Contracts, KRS Chapters 371, 372.

Drivers of carriers, regulation of working hours, KRS 281.730 .

General Assembly not to pass special acts to regulate labor, trade, mining or manufacturing, Ky. Const., § 59(24).

Health of employees, KRS Chapter 338.

Housing commissions may require contractors to comply with wage and hour rules, KRS 80.500 .

Labor Cabinet, KRS Chapter 336.

Liens for wages, KRS 376.150 to 376.190 , 376.360 .

Occupations and professions, KRS Chapters 309 to 335B.

Person not to deprive another of employment because of membership in national guard, KRS 38.460 .

Safety of employees, KRS Chapter 338.

Commissioner to administer wage law, KRS 336.050 .

Unemployment compensation based on wages, KRS 341.260 et seq.

Workers’ compensation, KRS Chapter 342.

Kentucky Bench & Bar.

Gilliland and McCormick, Minimum Wage and Overtime Pay, Vol. 56, No. 4, Fall 1992 Ky. Bench & B. 32.

Kentucky Law Journal.

Nowka and Taylor, Kentucky Employees’ Wage Liens: A Sneak Attack on Creditors, but Beware of the Bankruptcy Trustee, 84 Ky. L.J. 317 (1995-96).

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

General Law Issue: Note: Front Pay Under the FMLA, 38 N. Ky. L. Rev. 259 (2011).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

Payment of Wages Generally

337.015. Leave of absence for employee to receive adoptive child.

Upon receiving written request by an employee, every employer shall grant reasonable personal leave not to exceed six (6) weeks when the reception of an adoptive child under the age of seven (7) is the reason for such request.

History. Enact. Acts, 1982, ch. 422, § 1, effective July 15, 1982.

Research References and Practice Aids

Northern Kentucky Law Review.

General Law Issue: Note: Front Pay Under the FMLA, 38 N. Ky. L. Rev. 259 (2011).

337.020. Time of payment of wages — Exception.

Every employer doing business in this state shall, as often as semimonthly, pay to each of its employees all wages or salary earned to a day not more than eighteen (18) days prior to the date of that payment. Any employee who is absent at the time fixed for payment, or who, for any other reason, is not paid at that time, shall be paid thereafter at any time upon six (6) days’ demand. No employer subject to this section shall, by any means, secure exemption from it. Every such employee shall have a right of action against any such employer for the full amount of his wages due on each regular pay day. The provisions of this section do not apply to those individuals defined in KRS 337.010(2)(a)2.

History. 576a-1: amend. Acts 1978, ch. 340, § 2, effective June 17, 1978; 1982, ch. 126, § 1, effective July 15, 1982.

NOTES TO DECISIONS

1. Exemption.

Store managers were not entitled to the benefits of KRS 337.020 where they were supervisors for purposes of KRS 337.010(2)(a)(2). Barker v. Family Dollar, Inc., 2012 U.S. Dist. LEXIS 153331 (W.D. Ky. Oct. 25, 2012).

Cited:

Barker v. Stearns Coal & Lumber Co., 287 Ky. 340 , 152 S.W.2d 953, 1941 Ky. LEXIS 534 ( Ky. 1941 ); Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986).

Opinions of Attorney General.

It was the clear intent of the legislature under this section to require firms, individuals and partnerships, as well as corporations, to pay employees at least as frequently as semimonthly, and under subsection (1) of KRS 337.990 to penalize those who fail to comply. OAG 70-830 .

Vacation pay must “vest” at the time of an employee’s separation in order to be “earned” and, thus, to be considered “wages.” Under a written collective bargaining agreement, whether such pay has vested may be determined from the terms of the agreement although, where there is no such agreement, it will be difficult or impossible to make such a determination. OAG 76-387 .

The intention of the legislature in enacting this section was to require that all of a business corporation’s employees should be paid their wages at certain specified times and, therefore, in construing the term “employee” the common-law usage should be used rather than the definition set out in KRS 337.010 . OAG 76-681 .

This section only applies to a situation where the employee is still on the payroll and KRS 337.055 applies where the employee is no longer on the payroll. OAG 79-541 .

Under this section, a deputy and matron who have not been paid have a right of action against the jailer and fiscal court for the full amount of wages due on each regular payday. The affected deputy and matron could go into the local circuit court with a mandamus action, seeking a judgment ordering the fiscal court and county treasurer to pay their salaries pursuant to this section. OAG 82-400 (modifying OAG 82-155 , 80-319 and related opinions).

This section applies to the payment of jail employees, including the jailer’s deputies, and the exception listed in this section does not apply to such county jail employees; thus, the jailer must pay the county jail employees as often as semi-monthly all salary earned to a day not more than 18 days prior to the date of that payment. OAG 83-423 .

Where employer initiated a pay system wherein all payroll checks are directly deposited in a local banking institution without the express permission of the involved employees and monthly service charges were assessed by the bank in the event the employee/depositor failed to maintain a certain minimum balance such plan would violate KRS 337.010(1)(c), this section and KRS 337.060 and this section because the employee would be required to pay a fee to the bank should he wish to withdraw his entire balance as such withdrawal would give him less than the required minimum balance at the end of the month. The present plan was illegal, because the employee was not receiving his full pay, but must pay a charge to the bank in order to obtain his entire pay for the affected pay period. OAG 83-459 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

337.030. Wage earners to be paid in lawful money. [Repealed.]

Compiler’s Notes.

This section (1350) was repealed by Acts 1978, ch. 340, § 7.

337.040. Redemption of script — Action to enforce — Purchaser to keep record. [Repealed.]

Compiler’s Notes.

This section (4758b-1) was repealed by Acts 1978, ch. 340, § 7.

337.050. Time and a half for work done on seventh day of week — Exceptions.

  1. Any employer who permits any employee to work seven (7) days in any one (1) workweek shall pay him at the rate of time and a half for the time worked on the seventh day. For the purposes of this subsection, the term “workweek” shall mean a calendar week or any other period of seven (7) consecutive days adopted by the employer as the workweek with the intention that the same shall be permanent and without the intention to evade the overtime provision set out herein.
    1. Subsection (1) shall not apply in any case in which the employee is not permitted to work more than forty (40) hours during the workweek. In that case the employer may credit against the overtime payable under this section any overtime paid by him to the employees for the same hours under the requirements of any other law or contract. (2) (a) Subsection (1) shall not apply in any case in which the employee is not permitted to work more than forty (40) hours during the workweek. In that case the employer may credit against the overtime payable under this section any overtime paid by him to the employees for the same hours under the requirements of any other law or contract.
    2. Subsection (1) shall not apply to telephone exchanges having less than five hundred (500) subscribers, nor to stenographers, bookkeepers, or technical assistants of professions such as doctors, accountants, lawyers, and other professions licensed under the laws of this state, nor to any employees subject to the Federal Railway Labor Act and seamen or persons engaged in operating boats or other water transportation facilities upon navigable streams, nor to persons engaged in icing railroad cars, nor to common carriers under the supervision of the Department of Vehicle Regulation.
  2. “Employee” as used in subsection (1) does not include any officer, superintendent, foreman, or supervisor whose duties are principally limited to directing or supervising other employees.

History. 1599c-20: amend. Acts 1974, ch. 28, § 1; 1974, ch. 74, Art. IV, § 20(2).

NOTES TO DECISIONS

1. Exemption.

Claim that an employer violated the seventh day statute failed where the store managers fell into the supervisor exception of KRS 337.010(2), such that they were excluded from the benefits provided in KRS 337.385 . Barker v. Family Dollar, Inc., 2012 U.S. Dist. LEXIS 153331 (W.D. Ky. Oct. 25, 2012).

Cited:

Chumley v. Cox, 311 S.W.2d 185, 1958 Ky. LEXIS 177 ( Ky. 1958 ); Commonwealth v. Arlan’s Dep’t Store, 357 S.W.2d 708, 1962 Ky. LEXIS 140 ( Ky. 1962 ); Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986).

Opinions of Attorney General.

Minimum wage and maximum hour provisions do not apply to county jail deputies. OAG 67-333 .

Counties are political subdivisions of the state and are exempt from the minimum wage obligations imposed by KRS Chapter 337. OAG 68-70 .

The term “workweek” as designated in this section means any consecutive period of seven (7) days of work, whether same shall coincide with the calendar week, the employer’s workweek, or employee’s workweek. OAG 70-600 .

Since the federal basic minimum wage is higher than the state minimum wage under KRS 337.275 , the federal law applies to state and local employees, but since the state law has a lower workweek before overtime provisions apply to state and local employees, including policemen, firemen and security officers under KRS 337.285 , the state law as to overtime is applicable and, pursuant to this section, state and local employees who work seven (7) days in any one (1) workweek must be paid time and a half for the seventh day. OAG 74-532 .

The Kentucky minimum wage law places no restrictions or requirements on holidays or weekends, but it affects the “seventh day law” (KRS 337.050 ), and if a county employee, such as a policeman, works seven (7) consecutive days during his workweek, he has to be paid time and one half (1/2) his regular rate of pay on the seventh day of that workweek unless his total hours are 40 or less during the workweek. OAG 74-593 .

Based upon the state minimum wage law and the regulations pertaining thereto, it would be illegal to allow officers covered by the overtime provisions to receive time off or compensatory time instead of wages for overtime hours. OAG 75-216 .

To be able to work seven (7) days, the employer must meet the exceptions set out in KRS 436.160(1), (3) or (4); however, because an employer, who qualifies for the exception to the Sunday working rules pursuant to the continuous work scheduling requirement, must provide his employees with one (1) day of rest each calendar week, this section will not come into play; therefore, the overtime pay provisions only apply to those businesses that meet the exceptions specified in KRS 436.160(1) and (3). OAG 95-38 .

Research References and Practice Aids

Kentucky Bench & Bar.

Gilliland and McCormick, Minimum Wage and Overtime Pay, Vol. 56, No. 4, Fall 1992 Ky. Bench & B. 32.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

337.055. Payment of all wages or salary upon dismissal or voluntary leaving required.

Any employee who leaves or is discharged from his employment shall be paid in full all wages or salary earned by him; not later than the next normal pay period following the date of dismissal or voluntary leaving or fourteen (14) days following such date of dismissal or voluntary leaving whichever last occurs. Any employee who is absent at the time fixed for payment by an employer, or who, for any other reason, is not paid at that time, shall be paid thereafter at any time or upon fourteen (14) days’ demand. No employer shall, by any means, secure exemption from this section.

History. Enact. Acts 1974, ch. 275, § 1.

NOTES TO DECISIONS

Analysis

  1. Payment of “Earned Bonuses”.
  1. 5. Employee.
  2. Order final by operation of law
  3. Equitable tolling
  4. Compensable Employment.
  5. No Judicial Exception.
  6. National Guard.
  7. County Jail Personnel.
  8. Nonresident Employee.
  9. Prisoner.
  10. Student Trainees.
  11. Retirement of Employee.
  12. Agriculture.
  13. Contractor.
  14. Premises Owners.
  15. Spouses.
  16. Children.
  17. Civil Rights Act.
  18. Horseplay.
  19. Proof.
  20. Automobile Insurance Benefits.
  21. Mental and Emotional Injury.
  22. Bad Faith or Outrageous Conduct.
  23. Delay in Payment.
  24. Failure to Secure Compensation.
  25. Conflicts of Laws.
  26. Appealability.
1. Payment of “Earned Bonuses”.

Employee's wage payment claim was properly dismissed because the employer had paid the employees all monies owed to him as of the date his employment terminated, the employee's claims for short-term and long-term incentive compensation and vacation and holiday pay failed, and because the employee's temporary-living-expenses claim was connected to his relocation, not his continued employment, it did not fall within the meaning of “wages.” Vogel v. E.D. Bullard Co., 597 Fed. Appx. 817, 2014 FED App. 0949N, 2014 U.S. App. LEXIS 24665 (6th Cir. Ky. 2014 ).

1.5. Employee.

Defendant was entitled to partial summary judgment on plaintiffs’ claims for overtime wages under the Fair Labor Standards Act, 29 U.S.C.S. § 207, and the Kentucky Wages and Hours Act (KWHA), KRS 337.285(1), because plaintiffs were employed in a “bona fide administrative capacity,” and fell within the overtime wage exemption of 29 U.S.C.S. § 213(a)(1), and outside of the scope of “employee” under KRS 337.010(2)(a)(2). Because it appeared that the protections of KRS 337.385(1) and 337.055 might not apply to plaintiffs because they fell outside of the scope of “employee” as defined in the KWHA, the court reserved ruling on plaintiffs’ claims for unpaid wages and liquidated damages under KRS 337.385(1) and 337.055 and requested briefing on the issue. Fox v. Lovas, 2012 U.S. Dist. LEXIS 27908 (W.D. Ky. Mar. 1, 2012).

Cited:

Louisville v. Bergel, 610 S.W.2d 292, 1980 Ky. LEXIS 278 ( Ky. 1980 ); Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ); Dodd v. Dyke Indus., 518 F. Supp. 2d 970, 2007 U.S. Dist. LEXIS 78248 (W.D. Ky. 2007 ).

Notes to Unpublished Decisions

1. Payment of “earned bonuses”.

Unpublished decision: Where plaintiff former employee sued defendant former employer alleging a failure to pay an earned bonus under KRS 337.055 , while the term “wages” included “earned bonuses” within its definition under KRS 337.010(1)(c), because the bonus plan awarded bonuses if the company reached certain target levels of performance, which referred to the employer’s performance during each fiscal year, and the employee had worked for only four months of the fiscal year, and the employer offered evidence that it did not award, and had never awarded, pro rata bonuses, summary judgment in favor of the employer was affirmed. Guagenti v. James N. Gray Co., 105 Fed. Appx. 717, 2004 U.S. App. LEXIS 14350 (6th Cir. Ky. 2004 ).

Opinions of Attorney General.

Vacation pay must “vest” at the time of an employee’s separation in order to be “earned” and, thus, to be considered “wages.” Under a written collective bargaining agreement, whether such pay has vested may be determined from the terms of the agreement but, where there is no such agreement, it will be difficult or impossible to make such a determination. OAG 76-387 .

KRS 337.020 only applies to a situation where the employee is still on the payroll and this section applies where the employee is no longer on the payroll. OAG 79-541 .

Since the state is not legally obligated to grant unconditional annual leave as a benefit, it follows that the Department of Personnel may define the terms under which benefits may vest. OAG 91-73 .

It is legally permissible for the Commonwealth to determine by regulation that annual leave may not be converted to terminal wages and salary until 14-days notice of resignation is given. It is also permissible for the Commonwealth to determine that in order to qualify the employee must not have been terminated for misconduct or for poor work performance. OAG 91-73 .

337.060. Unlawful for employer to withhold wages — Exceptions — Specified deductions from wages prohibited.

  1. No employer shall withhold from any employee any part of the wage agreed upon. This section shall not make it unlawful for an employer to withhold or divert any portion of an employee’s wage when the employer is authorized to do so by local, state, or federal law or when a deduction is expressly authorized in writing by the employee to cover insurance premiums, hospital and medical dues, or other deductions not amounting to a rebate or deduction from the standard wage arrived at by collective bargaining or pursuant to wage agreement or statute, nor shall it preclude deductions for union dues where such deductions are authorized by joint wage agreements or collective bargaining contracts negotiated between employers and employees or their representative and meet the requirements of KRS 336.135 . However, a collective bargaining agreement entered into, opted in, renewed, or extended on or after January 9, 2017, shall not contain provisions authorizing or requiring the deduction of any portion of an employee’s wages without the written consent of the employee.
  2. Notwithstanding the provisions of subsection (1) of this section, no employer shall deduct the following from the wages of employees:
    1. Fines;
    2. Cash shortages in a common money till, cash box or register used by two (2) or more persons;
    3. Breakage;
    4. Losses due to acceptance by an employee of checks which are subsequently dishonored if such employee is given discretion to accept or reject any check; or
    5. Losses due to defective or faulty workmanship, lost or stolen property, damage to property, default of customer credit, or nonpayment for goods or services received by the customer if such losses are not attributable to employee’s willful or intentional disregard of employer’s interest.

History. 1599c-19: amend. Acts 1978, ch. 74, § 1, effective June 17, 1978; 1978, ch. 141, § 2, effective June 17, 1978; 1984, ch. 223, § 1, effective July 13, 1984; 2017 ch. 6, § 4, effective January 9, 2017.

NOTES TO DECISIONS

  1. Construction.
  2. Deduction by School Board.
  3. Collective Bargaining Agreement.
  4. Recoupment of Commissions.
  5. Preemption of Fraud Claims.
  6. Good Faith.
  7. Deduction by University.
1. Construction.

This section prohibits only the willful withholding of wages with intent to defraud. Poynter v. Louisville R. Co., 309 Ky. 609 , 218 S.W.2d 658, 1949 Ky. LEXIS 775 ( Ky. 1949 ).

2. Deduction by School Board.

This section did not prohibit a school board from deducting union dues from employees’ wages where such deduction was authorized by subsection (2) of KRS 161.158 . Clevinger v. Board of Educ., 789 S.W.2d 5, 1990 Ky. LEXIS 40 ( Ky. 1990 ).

3. Collective Bargaining Agreement.

Award by an arbitrator of a union contract which found that the contract properly provided that funds were to be withheld by the employer from paychecks of all employees eligible for union representation regardless of whether they were actually union members did not violate subsection (1) of this section where the dues deductions provision in the contract clearly fell within the statutory exception because the union was the official representative for the regular full-time maintenance employees, and as such had negotiated a collective bargaining agreement with employer which required dues or the equivalent deduction and the union was the official bargaining representative for all employers, not just those who are members of the union or those who had given employer written authorization for deductions. Accordingly, when the parties negotiated the requirement in the agreement that employer deduct regular union membership dues from employees eligible for union representation, all regular full-time maintenance employees fell within the exemption of subsection (1). Housing Auth. v. Service Employees Int'l Union, Local 557, 885 S.W.2d 692, 1994 Ky. LEXIS 119 ( Ky. 1994 ).

Company did not violate the Kentucky Wage and Hour Act because the employee himself admitted in testimony that he had no entitlement to a Christmas bonus. Stearman v. Ferro Coals, Inc., 751 Fed. Appx. 827, 2017 FED App. 0554N, 2018 U.S. App. LEXIS 31093 (6th Cir. Ky. 2018 ).

4. Recoupment of Commissions.

Judgment ordering an employer to return recouped commissions to its employees was improper because the employees had agreed that the commissions would be debited if an account stopped paying within a 12 month period; the wages agreed upon included this charge back provision. Therefore, the recoupment was not of wages “agreed upon,” and did not violate KRS 337.060 . AT&T Corp. v. Fowler, 2007 Ky. App. LEXIS 339 (Ky. Ct. App.), sub. op., 2007 Ky. App. Unpub. LEXIS 209 (Ky. Ct. App. Sept. 14, 2007).

5. Preemption of Fraud Claims.

Kentucky Wages and Hours Act, KRS 337.010 et seq., did not preempt a former salesman’s common law fraud claim. An employer could violate the Wages and Hours Act without fraudulent intent; thus, the former salesman’s fraudulent misrepresentation claims regarding concealment of commission calculations were separate from his statutory Wages and Hours Act claims. Dodd v. Dyke Indus., 2008 U.S. Dist. LEXIS 34786 (W.D. Ky. Apr. 25, 2008).

6. Good Faith.

Employee was not entitled to liquidated damages for an employer's failure to pay overtime because the employer acted in good faith by giving the employee extra work to assist the employee and not to thwart underlying public policy. Starr v. Louisville Graphite, Inc., 2016 Ky. App. LEXIS 58 (Ky. Ct. App. Apr. 22, 2016).

7. Deduction by University.

University was properly granted summary judgment on a former medical director’s wage and hour claim where although the university’s governmental immunity had been waived under Ky. Rev. Stat. ch. 337, the director failed to counter the university’s evidence that he had been overpaid by a specific amount, and thus, under former Ky. Rev. Stat. Ann. § 44.030 , the university was entitled to withhold wages. Lipson v. Univ. of Louisville, 556 S.W.3d 18, 2018 Ky. App. LEXIS 201 (Ky. Ct. App. 2018).

Cited:

Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986), overruled in part, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ), overruled in part as stated, Roby v. Midstates Indus. Group, Inc., — F. Supp. 2d —, 2006 U.S. Dist. LEXIS 78243 (W.D. Ky. Oct. 23, 2006); Dodd v. Dyke Indus., 518 F. Supp. 2d 970, 2007 U.S. Dist. LEXIS 78248 (W.D. Ky. 2007 ).

Opinions of Attorney General.

Gilliland and McCormick, Minimum Wage and Overtime Pay, Vol. 56, No, 4, Fall 1992 Ky. Bench & B. 32.

To interpret this section to require school bus drivers and other noncertified school personnel to be both paid for “snow days” which they did not work and for days worked to make up those days, where there was neither a contractual agreement to pay for snow days as part of the emoluments of the job, nor a statute or regulation to that effect, would be to convert the payment for snow days when they occurred into a bonus or gift in violation of Ky. Const., §§ 3 and 186. OAG 79-337 .

An employer who is permitted under the federal Fair Labor Standards Act regulations to deduct cash shortages from an employee’s wages as long as such deductions do not reduce the employee’s wages below the applicable federal minimum wage, cannot deduct amounts to cover cash shortages without written agreement of the employee under this section since the federal regulations permit such a deduction if it does not result in the wage going below federal standards, but does not authorize or require such a deduction as necessary under this section; except that an employer may deduct for shortages without written agreement if authorized by 803 KAR 1:088. OAG 81-14 .

The term “employer” applied in this section includes all employers in Kentucky, as encompassed under KRS 337.010 , rather than being limited to employers covered by state or federal minimum wage laws. OAG 81-14 .

Where employer initiated a pay system wherein all payroll checks are directly deposited in a local banking institution without the express permission of the involved employees and monthly service charges were assessed by the bank in the event the employee/depositor failed to maintain a certain minimum balance such plan would violate KRS 337.010(1)(c), 337.020 , and this section because the employee would be required to pay a fee to the bank should he wish to withdraw his entire balance as such withdrawal would give him less than the required minimum balance at the end of the month. The present plan was illegal, because the employee was not receiving his full pay, but must pay a charge to the bank in order to obtain his entire pay for the affected pay period. OAG 83-459 .

Research References and Practice Aids

Kentucky Bench & Bar.

Gilliland and McCormick, Minimum Wage and Overtime Pay, Vol. 56, No. 4, Fall 1992 Ky. Bench & B. 32.

337.065. Unlawful for employer to require remittance of gratuity — Tip pooling.

  1. No employer shall require an employee to remit to the employer any gratuity, or any portion thereof, except for the purpose of withholding amounts required by federal or state law. The amount withheld from such gratuity shall not exceed the amount required by federal or state law.
  2. As used in this section, “gratuity” means voluntary monetary contribution received by an employee from a guest, patron, or customer for services rendered.
  3. No employer shall require an employee to participate in a tip pool whereby the employee is required to remit to the pool any gratuity, or any portion thereof, for distribution among employees of the employer.
  4. Employees may voluntarily enter into an agreement to divide gratuities among themselves. The employer may inform the employees of the existence of a voluntary pool and the customary tipping arrangements of the employees at the establishment. Upon petition by the participants in the voluntary pool, and at his own option and expense, an employer may provide custodial services for the safekeeping of funds placed in the pool, if the account is properly identified and segregated from his other business records and open to examination by pool participants.

History. Enact. Acts 1976, ch. 222, § 1; 1996, ch. 115, § 2, effective July 15, 1996.

NOTES TO DECISIONS

1. Class Actions.

Trial court erred in dismissing a server’s class action against a corporation seeking damages and attorney’s fees pursuant to KRS 337.385 , as the server did not waive his right to pursue the cause of action by accepting a settlement for tips improperly withheld by a restaurant under KRS 337.065 in an earlier administrative action, since the release signed by the server applied only to the withheld tips. Singleton v. Bravo Dev., Inc., 2007 Ky. App. LEXIS 352 (Ky. Ct. App.), sub. op., 2007 Ky. App. Unpub. LEXIS 509 (Ky. Ct. App. Sept. 21, 2007).

Former employers’ motion for reconsideration of court’s class certification decision on former employees’ wage and hour claims was denied because (1) court thoroughly addressed class certification requirements in original memorandum opinion and order and would not revisit those decisions; (2) if employees proved employers’ liability, they would be able to demonstrate that their damages stemmed from employers’ actions that created legal liability; (3) presence of individualized damages could not defeat class certification; and (4) evidence demonstrated that class certification was superior method to adjudicate case fairly and efficiently. Whitlock v. FSL Mgmt., 2013 U.S. Dist. LEXIS 148747 (W.D. Ky. Oct. 16, 2013).

Cited:

Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986), overruled in part, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ), overruled in part as stated, Roby v. Midstates Indus. Group, Inc., — F. Supp. 2d —, 2006 U.S. Dist. LEXIS 78243 (W.D. Ky. Oct. 23, 2006).

Opinions of Attorney General.

Reducing the amount of tip charged on a credit card by the discount rate which a restaurant owner and a credit card company have negotiated is a violation of this section and, in effect, is remittance of a portion of a gratuity to the employer, even though the employer may assign that portion to a credit card company to cover part of his or her expense of discounting credit card transactions. OAG 87-7 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

337.070. Employer to furnish employee with statement of wage deductions.

All employers who employ ten (10) or more and pay their employees by check or otherwise, making deductions from the salaries and wages due said employees, shall state specifically the amount for which the deductions are made, and each such employer at the time of payment of salary or wage to each employee shall furnish the employee a paper or electronic statement giving the amount of each deduction and the general purpose for which the deduction is made. If an employer provides an electronic statement, then the employer shall provide access to a computer and printer for review and printing by the employee.

HISTORY: Enact. Acts 1944, ch. 63, § 1; 2017 ch. 134, § 5, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986), overruled in part, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ), overruled in part as stated, Roby v. Midstates Indus. Group, Inc., — F. Supp. 2d —, 2006 U.S. Dist. LEXIS 78243 (W.D. Ky. Oct. 23, 2006).

337.075. Lien on property of employer who violates provisions of chapter — Recording of lien.

  1. A lien may be placed on all property, both real and personal, of an employer who has been assessed civil penalties by the commissioner for violations of the wages and hours provisions of this chapter, but not before all administrative and judicial appeals have been exhausted. The lien shall be in favor of the Labor Cabinet and shall be an amount totaling the unpaid wages and penalties due, together with interest at a rate of twelve percent (12%) per annum from the date the notice of the violation is final, but not before all administrative and judicial appeals have been exhausted. The lien shall be attached to all property and rights to property owned or subsequently acquired by the employer. The commissioner or the commissioner’s designee shall record the lien as provided in subsection (2) of this section. The lien shall show the date on which the notice of violation was issued, the date of the violation, the name and last known address of the employer against whom the assessment was made, and the amount of unpaid wages, penalties, and interest. The lien shall be superior to the lien of any mortgage or encumbrance thereafter created and shall continue for ten (10) years from the time of the recording, unless sooner released or otherwise discharged.
  2. The lien shall be filed in any of the following offices in which the employer owns property or rights to property and any filing fees associated with filing the lien shall be pursuant to KRS 64.012 :
    1. The office of the county clerk of the county in which the defendant employer resides.
    2. The office of the county clerk of the county in which the defendant employer has its principal place of business.
    3. The office of the county clerk of any county in which the defendant employer has property or an interest in property.

History. Enact. Acts 1994, ch. 130, § 1, effective July 15, 1994; 2006, ch. 255, § 24, effective January 1, 2007; 2010, ch. 24, § 1728, effective July 15, 2010.

Employment and Volunteer Firefighting

337.100. Volunteer firefighter, rescue squad member, emergency medical technician, peace officer, or emergency management agency member absent from employment due to emergency or injury incurred in the line of duty.

  1. No employer shall terminate an employee who is a volunteer firefighter, rescue squad member, emergency medical technician, peace officer, or a member of an emergency management agency because that employee, when acting as a volunteer firefighter, rescue squad member, emergency medical technician, peace officer, or a member of an emergency management agency, is absent or late to the employee’s employment in order to respond to an emergency prior to the time the employee is to report to his or her place of employment.
  2. An employer may charge any time that an employee who is a volunteer firefighter, rescue squad member, emergency medical technician, peace officer, or a member of an emergency management agency loses from employment because of the employee’s response to an emergency against the employee’s regular pay.
  3. An employer may request an employee who loses time from the employee’s employment to respond to an emergency to provide the employer with a written statement from the supervisor or acting supervisor of the volunteer fire department, rescue squad, emergency medical services agency, law enforcement agency, or the director of the emergency management agency stating that the employee responded to an emergency and listing the time and date of the emergency.
  4. No employer shall terminate an employee who is a volunteer firefighter, rescue squad member, emergency medical technician, peace officer, or member of an emergency management agency who is absent for a period of no more than twelve (12) months from the employee’s employment because of injuries incurred in the line of duty. The volunteer firefighter, rescue squad member, emergency medical technician, peace officer, or member of an emergency management agency shall provide, at the request of his or her employer:
    1. A written statement from the supervisor, acting supervisor, or director of the volunteer fire department, rescue squad, emergency medical services agency, law enforcement agency, or emergency management agency under whose command the employee was on active duty and on assignment with that fire department, rescue squad, emergency medical services agency, law enforcement agency, or emergency management agency when the injury occurred; and
    2. A written statement from at least one (1) licensed and practicing physician stating that the volunteer firefighter, rescue squad member, emergency medical technician, peace officer, or member of an emergency management agency is injured and a date for the employee’s return to work.
  5. Any employee that is terminated in violation of the provisions of this section may bring a civil action against his or her employer. The employee may seek reinstatement to the employee’s former position, payment of back wages, reinstatement of fringe benefits, and where seniority rights are granted, the reinstatement of seniority rights. In order to recover, the employee shall file this action within one (1) year of the date of the violation of this section.

History. Enact. Acts 2001, ch. 162, § 1, effective June 21, 2001; 2002, ch. 17, § 1, effective July 15, 2002; 2006, ch. 30, § 1, effective July 12, 2006.

Performance Bonds

337.200. Performance bond for wages due from employer engaged in construction work, or the severance, preparation, or transportation of minerals.

Except for employers who have been doing business in the state for five (5) consecutive years, every employer engaged in construction work, or the severance, preparation, or transportation of minerals, shall furnish on a form prescribed by the commissioner a performance bond to assure the payment of all wages due from the employer. Surety for the bond shall be an amount of money equal to the employer’s gross payroll operating at full capacity for four (4) weeks. Any employee whose wages are secured by a bond may obtain payment of those wages, liquidated damages, and attorney’s fees as provided by law on presentation to the commissioner of a final judgment entered by a court of competent jurisdiction. The bond may be terminated, with the approval of the commissioner, on submission of the employer’s statement, lawfully administered under oath, that the employer has ceased doing business in the state and that all due wages have been paid.

History. Enact. Acts 1986, ch. 121, § 1, effective July 15, 1986; 2010, ch. 24, § 1729, effective July 15, 2010.

Minimum Wages

337.210. Unreasonable wage contracts void. [Repealed.]

Compiler’s Notes.

This section (4767a-2: amend. Acts 1966, ch. 158, § 2) was repealed by Acts 1974, ch. 391, § 14.

337.220. Investigation of wages — Request for wage board. [Repealed.]

Compiler’s Notes.

This section (4767a-4: amend. Acts 1966, ch. 158, § 3) was repealed by Acts 1974, ch. 391, § 14.

337.230. Considerations in fixing minimum fair wage. [Repealed.]

Compiler’s Notes.

This section (4767a-1) was repealed by Acts 1974, ch. 391, § 14.

337.240. Wage board — Members — Duties — Powers — Report. [Repealed.]

Compiler’s Notes.

This section (4767a-5; amend: Acts 1966, ch. 158, § 4) was repealed by Acts 1974, ch. 391, § 14.

337.250. Action following wage board report — Directory order. [Repealed.]

Compiler’s Notes.

This section (4767a-6) was repealed by Acts 1974, ch. 391, § 14.

337.260. Special license for less than minimum wage. [Repealed.]

Compiler’s Notes.

This section (4767a-7; amend: Acts 1966, ch. 158, § 5) was repealed by Acts 1974, ch. 391, § 14.

337.270. Mandatory order. [Repealed.]

Compiler’s Notes.

This section (4767a-8) was repealed by Acts 1974, ch. 391, § 14.

337.275. Minimum wage.

  1. Except as may otherwise be provided by this chapter, every employer shall pay to each of his employees wages at a rate of not less than five dollars and eighty-five cents ($5.85) an hour beginning on June 26, 2007, not less than six dollars and fifty-five cents ($6.55) an hour beginning July 1, 2008, and not less than seven dollars and twenty-five cents ($7.25) an hour beginning July 1, 2009. If the federal minimum hourly wage as prescribed by 29 U.S.C. sec. 206(a)(1) is increased in excess of the minimum hourly wage in effect under this subsection, the minimum hourly wage under this subsection shall be increased to the same amount, effective on the same date as the federal minimum hourly wage rate. If the state minimum hourly wage is increased to the federal minimum hourly wage, it shall include only the federal minimum hourly rate prescribed in 29 U.S.C. sec. 206(a)(1) and shall not include other wage rates or conditions, exclusions, or exceptions to the federal minimum hourly wage rate. In addition, the increase to the federal minimum hourly wage rate does not extend or modify the scope or coverage of the minimum wage rate required under this chapter.
  2. Notwithstanding the provisions of subsection (1) of this section, for any employee engaged in an occupation in which he customarily and regularly receives more than thirty dollars ($30) per month in tips from patrons or others, the employer may pay as a minimum not less than the hourly wage rate required to be paid a tipped employee under the federal minimum hourly wage law as prescribed by 29 U.S.C. sec. 203 . The employer shall establish by his records that for each week where credit is taken, when adding tips received to wages paid, not less than the minimum rate prescribed in 29 U.S.C. sec. 203 was received by the employee. No employer shall use all or part of any tips or gratuities received by employees toward the payment of the statutory minimum hourly wage as required by 29 U.S.C. sec. 203. Nothing, however, shall prevent employees from entering into an agreement to divide tips or gratuities among themselves.

History. Enact. Acts 1974, ch. 391, § 2; 1978, ch. 198, § 1, effective June 17, 1978; 1982, ch. 249, § 1, effective July 15, 1982; 1986, ch. 208, § 1, effective July 15, 1986; 1990, ch. 421, § 1, effective July 13, 1990; 1996, ch. 115, § 3, effective July 15, 1996; 1998, ch. 240, § 1, effective July 15, 1998; 2007, ch. 69, § 1, effective June 26, 2007.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Application.
1. Constitutionality.

The requirement under this section that municipalities pay their fire fighters a minimum wage did not per se constitute the exercise of absolute or arbitrary power over the municipalities in violation of Const., § 2. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

2. Application.

Though the provision for minimum wages was invalid as to municipal employees who are engaged in work of purely local concern, under the theory of severability the provision remained applicable to fire fighters engaged in work of statewide concern. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

Former employers’ motion for reconsideration of court’s class certification decision on former employees’ wage and hour claims was denied because (1) court thoroughly addressed class certification requirements in original memorandum opinion and order and would not revisit those decisions; (2) if employees proved employers’ liability, they would be able to demonstrate that their damages stemmed from employers’ actions that created legal liability; (3) presence of individualized damages could not defeat class certification; and (4) evidence demonstrated that class certification was superior method to adjudicate case fairly and efficiently. Whitlock v. FSL Mgmt., 2013 U.S. Dist. LEXIS 148747 (W.D. Ky. Oct. 16, 2013).

Cited:

Snyder v. Owensboro, 555 S.W.2d 246, 1977 Ky. LEXIS 499 ( Ky. 1977 ).

Opinions of Attorney General.

Since the federal basic minimum wage is higher than state minimum wage under this section, the federal law applies to state and local employees, but since the state law has a lower workweek before overtime provisions apply to state and local employees, including policemen, firemen and security officers under KRS 337.285 , the state law as to overtime is applicable and, pursuant to KRS 337.050 , state and local employees who work seven days (7) in any one (1) workweek must be paid time and a half for the seventh day. OAG 74-532 .

The Kentucky minimum wage law merely sets the minimum wage for the first 40 hours of work per week and does not preclude an employer from employing his employees beyond 40 hours per week or eight hours per day. OAG 74-593 .

If a city chief of police on 24-hour call seven (7) days a week and receiving $400 per month plus the use of a city apartment meets the definition of an executive, administrative, supervisory or professional employee, he should be excluded from the Kentucky minimum wage law, and by implication from the overtime provisions, but if he does not meet the definition, then he must be paid minimum wages and be covered for overtime. OAG 74-602 .

Based upon the Department of Labor’s regulations LAB-7, 8 and 13, regular recurring compensation such as hazardous duty pay, specialist pay, regular incentive pay and educational allowances are includable in determining a policeman’s base hourly rate, but not court pay which is not regularly paid and comes within the exclusions of section 2(5) of LAB-13. OAG 74-629 .

The Kentucky minimum wage law, which has been found constitutional, uses the Department of Labor’s regulation LAB-7, § 8 in computing the hourly rate of various municipal employees who had previously been paid on a monthly basis by multiplying the monthly salary by 12 to get the yearly salary, dividing by 52 to get the weekly salary, dividing by the number of hours worked per week to give the base rate per hour for the first 40 hours, and then multiplying by 11/2 for all hours worked over 40. OAG 74-906 .

Tobacco workers employed not by farmers but by warehousemen and engaged in stripping, grading, buying, stemming, sorting, redrying, packing and storing tobacco are not “employed in agriculture” within the exemption provision of KRS 337.010 and are entitled to the minimum wage and overtime provisions of this section and KRS 337.285 . OAG 75-55 .

As an election officer is not an “employee” pursuant to KRS 337.010 (2)(c) (now KRS 337.010 (2)(a)), he is not covered by this section. OAG 75-664 .

The state minimum wage law does not exempt part-time or seasonal employees from its orbit. OAG 76-377 .

The Kentucky Department of Labor has the authority to enforce the Kentucky minimum wage and overtime provisions, this section and KRS 337.285 , as to trucking companies employing “over the road” truck drivers who are engaged in interstate commerce. OAG 76-572 .

The state minimum wage law does not exclude part-time or seasonal city employees from coverage under its terms. OAG 82-183 .

While members of the city auxiliary police force must be paid at least the state minimum wage rate for those hours actually worked, even though they are part-time employees, they are not entitled to pay for that portion of time spent “on call” as opposed to hours actually worked. OAG 82-183 .

The state minimum wage statute, this section, as amended in 1982, applies to the jailer deputy and matron. OAG 82-626 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

ALR

Validity of minimum wage statutes relating to private employment. 39 A.L.R.2d 740.

337.280. Publication of names of employers not observing order. [Repealed.]

Compiler’s Notes.

This section (4767a-9) was repealed by Acts 1974, ch. 391, § 14.

337.285. Time and a half for employment in excess of forty hours — Compensatory time — County or city employee, Trooper R Class, CVE R Class — Designated work period for professional firefighters.

  1. No employer shall employ any of his employees for a work week longer than forty (40) hours, unless such employee receives compensation for his employment in excess of forty (40) hours in a work week at a rate of not less than one and one-half (1-1/2) times the hourly wage rate at which he is employed.
  2. This provision shall not apply to the following:
    1. Employees of retail stores engaged in work connected with selling, purchasing, and distributing merchandise, wares, goods, articles, or commodities;
    2. Employees of restaurant, hotel, and motel operations;
    3. Employees as defined and exempted from the overtime provision of the Fair Labor Standards Act in Sections 213(b)(1), 213(b)(6), 213(b)(10), and 213(b)(17) of Title 29, U.S.C.;
    4. Employees whose function is to provide twenty-four (24) hour residential care on the employer’s premises in a parental role to children who are primarily dependent, neglected, and abused and who are in the care of private nonprofit childcaring facilities licensed by the Cabinet for Health and Family Services under KRS 199.640 to 199.670 ; or
    5. Any individual who is employed by a third-party employer or agency other than the family or household using his or her services to provide in-home companionship services for a sick, convalescing, or elderly person.
  3. As used in subsection (2) of this section, “companionship services” means those services which provide in-home fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. These services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work, provided that the household work is incidental, i.e., does not exceed twenty percent (20%) of the total weekly hours worked. The term “companionship services” does not include services relating to the care and protection of the aged or infirm which require and are performed by trained personnel, such as a registered or practical nurse.
  4. Notwithstanding the provisions of subsection (1) of this section or any other chapter of the KRS to the contrary, upon written request by a county or city employee or a Trooper R Class or CVE R Class, made freely and without coercion, pressure, or suggestion by the employer, and upon a written agreement reached between the employer and the county or city employee or the Trooper R Class or CVE R Class before the performance of the work, a county or city employee or a Trooper R Class or CVE R Class who is authorized to work one (1) or more hours in excess of the prescribed hours per week may be granted compensatory leave on an hour-for-hour basis. Upon the written request by a county or city employee or a Trooper R Class or CVE R Class, made freely and without coercion, pressure, or suggestion by the employer, and upon a written agreement reached between the employer and the county or city employee or the Trooper R Class or CVE R Class, before the performance of the work, a county or city employee or a Trooper R Class or CVE R Class who is not exempt from the provisions of the Federal Fair Labor Standards Act of 1938, as amended, 29 U.S.C. secs. 201 et seq., may be granted compensatory time in lieu of overtime pay, at the rate of not less than one and one-half (1-1/2) hours for each hour the county or city employee or the Trooper R Class or CVE R Class is authorized to work in excess of forty (40) hours in a work week.
    1. Upon the request of the county or city employee or the Trooper R Class or CVE R Class, and as provided in subsection (4) of this section, compensatory time shall be awarded as follows: (5) (a) Upon the request of the county or city employee or the Trooper R Class or CVE R Class, and as provided in subsection (4) of this section, compensatory time shall be awarded as follows:
      1. A county or city employee who provided work in excess of forty (40) hours in a public safety activity, an emergency response activity, or a seasonal activity as described in 29 C.F.R. sec. 553.24, may accrue not more than four hundred eighty (480) hours of compensatory time; or
      2. A county or city employee or a Trooper R Class or CVE R Class engaged in other work in excess of forty (40) hours, may accrue not more than two hundred forty (240) hours of compensatory time.
    2. A county or city employee or a Trooper R Class or CVE R Class who has accrued four hundred eighty (480) hours of compensatory time off pursuant to paragraph (a)1. of this subsection, or two hundred forty (240) hours of compensatory time off pursuant to paragraph (a)2. of this subsection, shall for additional overtime hours of work, be paid overtime compensation.
  5. A county or city employee or a Trooper R Class or CVE R Class who has accrued compensatory time off as provided in subsection (4) of this section, and who requested the use of compensatory time, shall be permitted by the employer to use the compensatory time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the employer. Mere inconvenience to the employer shall not constitute a sufficient basis for denial of a county or city employee’s request or a Trooper R Class or CVE R Class request for compensatory time off.
  6. If compensation is paid to a county or city employee or a Trooper R Class or CVE R Class for accrued compensatory time off, the compensation shall be paid at the regular rate earned by the county or city employee or the Trooper R Class or CVE R Class at the time the county or city employee or the Trooper R Class or CVE R Class receives the payment.
  7. Upon a county or city employee’s termination of employment or the termination of employment of a Trooper R Class or CVE R Class, all unused accrued compensatory time shall be paid at a rate of compensation not less than:
    1. The average regular rate received by the county or city employee or the Trooper R Class or CVE R Class during the last three (3) years of the employment of the county or city employee or Trooper R Class or CVE R Class; or
    2. The final regular rate received by the county or city employee or Trooper R Class or CVE R Class, whichever is higher.
  8. Compensatory time shall not be used as a means to avoid statutory overtime compensation. A county or city employee or a Trooper R Class or CVE R Class shall have the right to use compensatory time earned and shall not be coerced to accept more compensatory time than an employer can realistically and in good faith expect to be able to grant within a reasonable period upon the county or city employee or the Trooper R Class or CVE R Class making the request for compensatory time off.
  9. Nothing in subsections (4) to (9) of this section shall be construed to supersede any collective bargaining agreement, memorandum of understanding, or any other agreement between the employer and representative of the county or city employees or the Trooper R Class or CVE R Class.
  10. As used in subsections (4) to (9) of this section:
    1. “County or city employee” means an employee of any county, city, charter county, consolidated local government, unified local government, or urban-county government, including an employee of a county or city elected official;
    2. “CVE R Class” has the same meaning as in KRS 16.010 ; and
    3. “Trooper R Class” has the same meaning as in KRS 16.010 .
  11. In addition to the designation of a work week under subsection (1) of this section, local governments, as defined in KRS 95A.210 (5), may designate a work period for professional firefighter employees as defined in KRS 95A.210 . The designated work period shall be not less than one (1) work week of seven (7) consecutive days and not more than four (4) work weeks of twenty-eight (28) consecutive days for purposes of complying with the requirements of the Federal Labor Standards Act of 1938, as amended, 29 U.S.C. secs. 201 et seq. This subsection shall not exempt local governments from complying with the overtime requirements set forth in subsection (1) of this section and is intended to:
    1. Clarify the option to designate both a work week for compliance with Kentucky law and a work period for compliance with the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. secs. 201 et seq.; and
    2. Allow for the application of the partial exemption set forth in 29 U.S.C. sec. 207(k) in determining overtime pay under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. secs. 201 et seq., only.
    1. A law enforcement department of a consolidated local government organized under KRS Chapter 67C shall not be deemed to have violated subsection (1) of this section with respect to the employment of a peace officer if: (13) (a) A law enforcement department of a consolidated local government organized under KRS Chapter 67C shall not be deemed to have violated subsection (1) of this section with respect to the employment of a peace officer if:
      1. The officer works eighty (80) hours or less in a work period of fourteen (14) consecutive days; and
      2. The law enforcement department and a representative of a collective bargaining unit certified under KRS 67C.408 that includes the officer agree to the exception.
    2. It is the intent of this subsection to allow the employment of a peace officer for longer than forty (40) hours in any seven (7) consecutive days within a fourteen (14) day work period without incurring the obligation to pay a rate of not less than one and one-half (1-1/2) times the officer’s hourly wage under subsection (1) of this section.

HISTORY: Enact. Acts 1974, ch. 391, § 3; 1976, ch. 285, § 1; 1978, ch. 198, § 2, effective June 17, 1978; 1980, ch. 326, § 1, effective July 15, 1980; 1982, ch. 376, § 1, effective July 15, 1982; 1986, ch. 423, § 193, effective July 1, 1987; 1998, ch. 426, § 559, effective July 15, 1998; 2002, ch. 68, § 1, effective July 15, 2002; 2002, ch. 329, § 1, effective July 15, 2002; 2004, ch. 122, § 1, effective July 13, 2004; 2005, ch. 99, § 607, effective June 20, 2005; 2008, ch. 75, § 1, effective July 15, 2008; 2009, ch. 33, § 5, effective March 20, 2009; 2016 ch. 43, § 1, effective April 6, 2016; 2018 ch. 195, § 1, effective July 14, 2018.

Compiler’s Notes.

The Fair Labor Standards Act, referred to in subsections (2)(c) and (4), is compiled as 29 USCS § 201 et seq.

Legislative Research Commission Notes.

(3/25/19). 2019 Ky. Acts ch. 67, sec. 1, amended KRS 95A.210 to add new subsections and to change the internal numbering of others. KRS 337.285(12) cites KRS 95A.210 (3). It is clear from the context that in this section KRS 95A.210(3) should have been changed to KRS 95A.210(5) to conform. This error has been corrected in codification under the authority of KRS 7.136 .

NOTES TO DECISIONS

  1. Constitutionality.
  2. Application.
  3. Wage Rates.
  4. Time “on call.”
  5. Collective Bargaining Agreement.
  6. Compensable Labor.
  7. Federal Law.
  8. Sovereign Immunity.
  9. Statute of Limitations.
  10. Overtime.
1. Constitutionality.

The fact that municipalities were required to pay their fire fighters overtime pay did not per se constitute the exercise of absolute or arbitrary power over the municipalities in violation of Const., § 2. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

2. Application.

Though the provision for overtime payments was invalid as to municipal employees who are engaged in work of purely local concern, under the theory of severability the provision remained applicable to fire fighters engaged in work of statewide concern. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

Ordinances fixing the hourly pay scale for firemen which do not conform with the requirements of this section were not invalid where they were adopted prior to the effective date of this section. Snyder v. Owensboro, 555 S.W.2d 246, 1977 Ky. LEXIS 499 ( Ky. 1977 ).

Where an ordinance changing from a monthly salary to an hourly rate of pay for fire fighters was adopted and became effective prior to the effective date of this section, this section would not be given retroactive effect to invalidate the ordinance. Miller v. Lexington-Fayette Urban County Government, 557 S.W.2d 430, 1977 Ky. App. LEXIS 835 (Ky. Ct. App. 1977).

District fire chiefs were not employees under KRS 337.285 since the city’s actual practices of requiring scheduled shifts, allowing shift trades, changing pay when the time changed, requiring timesheets, requiring approval before vacation or compensatory time could be used, allowing compensatory time, and, in one instance, disciplining a district fire chief for an unrelated administrative violation by the loss of two vacation days, were insufficient to show that the chiefs were employees rather than supervisory, salaried personnel. City of Louisville, Div. of Fire v. Fire Serv. Managers Ass'n by & Through Kaelin, 212 S.W.3d 89, 2006 Ky. LEXIS 296 ( Ky. 2006 ).

Liability for overtime pay was established under KRS 337.285 and, thus, the state supreme court did not have to determine whether the government employers were acting as agents of the state when they participated on the Professional Firefighters Foundation Program Fund. Even assuming that to be true, the directives of KRS Chapter 95A and KRS 337.285 showed clearly that the General Assembly had waived any governmental or sovereign immunity that such status might have otherwise bestowed on the government employers with respect to liability for paying overtime wages to local firefighters involved in improving their education and training. Madison County Fiscal Court v. Ky. Labor Cabinet, 352 S.W.3d 572, 2011 Ky. LEXIS 114 ( Ky. 2011 ).

Defendant was entitled to partial summary judgment on plaintiffs’ claims for overtime wages under the Fair Labor Standards Act, 29 U.S.C.S. § 207, and the Kentucky Wages and Hours Act (KWHA), KRS 337.285(1), because plaintiffs were employed in a “bona fide administrative capacity,” and fell within the overtime wage exemption of 29 U.S.C.S. § 213(a)(1), and outside of the scope of “employee” under KRS 337.010(2)(a)(2). Because it appeared that the protections of KRS 337.385(1) and 337.055 might not apply to plaintiffs because they fell outside of the scope of “employee” as defined in the KWHA, the court reserved ruling on plaintiffs’ claims for unpaid wages and liquidated damages under KRS 337.385(1) and 337.055 and requested briefing on the issue. Fox v. Lovas, 2012 U.S. Dist. LEXIS 27908 (W.D. Ky. Mar. 1, 2012).

3. Wage Rates.

Under this section, the proper formula for determining wage rates for firemen was to divide the number of hours worked in a week into the week’s pay to establish the hourly wage rate, and then add to that the figure obtained by multiplying one and one-half (11/2) times the number of overtime hours per week in order to determine total weekly pay. Snyder v. Owensboro, 555 S.W.2d 246, 1977 Ky. LEXIS 499 ( Ky. 1977 ).

Federal case law provided guidance on applying the salary basis test under KRS 337.285 where the salary basis test for bona fide executive employees of the Fair Labor Standards Act, 29 USCS § 201 et seq., was substantially similar to those in KRS ch. 337 and the relevant administrative regulations. City of Louisville, Div. of Fire v. Fire Serv. Managers Ass'n by & Through Kaelin, 212 S.W.3d 89, 2006 Ky. LEXIS 296 ( Ky. 2006 ).

Even though included in the firefighters’ total wages, a clothing allowance was not remuneration for purposes of calculating overtime pay because it was not compensation for services they performed for the city, but a payment by which they were reimbursed for having to purchase their own work-clothing. Just as the disbursement of clothing would not be an element of remuneration, neither are payments which reimburse the firefighters for purchasing clothing on their own. Commonwealth v. Hasken, 265 S.W.3d 215, 2007 Ky. App. LEXIS 244 (Ky. Ct. App. 2007).

4. Time “on call.”

Where policemen were ordered to be able to be reached by telephone, and to report on duty within 30 minutes thereafter, 24 hours a day, they were not to be paid for “on call” time since policemen are normally considered to be under a duty to respond at any time; although it was error for the court to deny a jury trial on this issue, such error was harmless since a directed verdict for the county would have been proper. Spellman v. Fiscal Court of Jefferson County, 574 S.W.2d 342, 1978 Ky. App. LEXIS 623 (Ky. Ct. App. 1978).

5. Collective Bargaining Agreement.

Provision in collective bargaining agreement between city and fraternal order of police, to the effect that for overtime in excess of 30 minutes the member should be paid the overtime rate for a full hour, and that overtime of less than 30 minutes should not be paid, was not invalid under this section or KRS 337.385(1). Orms v. Louisville, 686 S.W.2d 464, 1984 Ky. App. LEXIS 612 (Ky. Ct. App. 1984).

The 15-minute “roll call” prior to the beginning of each firefighter’s shift was not compensable, where the firefighters’ employment agreement, which was the result of careful, good faith bargaining, set out the requirement of “roll call” attendance, but made no mention of compensation for this extra-shift labor, and the union had accepted the practice by many years of acquiescence to the lack of payment for “roll call.” Louisville v. Gnagie, 716 S.W.2d 236, 1986 Ky. LEXIS 287 ( Ky. 1986 ).

Secretary of the Kentucky Department of Labor misinterpreted 803 KAR 1:060 by ruling that 2,912 hours (the average hours firefighters worked per year) was the proper divisor to use to calculate their overtime pay, as the collective bargaining agreement and other evidence established that the parties intended to use additional elements of pay as compensation for a 40-hour work week (2,080 hours per year). Commonwealth v. Hasken, 265 S.W.3d 215, 2007 Ky. App. LEXIS 244 (Ky. Ct. App. 2007).

6. Compensable Labor.

In a class action by firefighters against the city for compensation for the 15-minute “roll call” prior to each shift pursuant to this section, summary judgment liability was appropriate where there was no dispute that there had continued for many years a practice whereby firefighters arrived 15 minutes prior to the beginning of their shifts for “roll call,” the parties agreed that firefighters had received no compensation for this time, and the dispute was only in the legal significance of “roll call,” i.e. whether it represented compensable labor. Louisville v. Gnagie, 716 S.W.2d 236, 1986 Ky. LEXIS 287 ( Ky. 1986 ).

Warehouse employees' Kentucky Wages and Hours Act suit for compensation for mandatory time spent proceeding through a theft-prevention security screening operation was not a compensable postliminary activity because security screenings were not the warehouse employees' principal activities. Vance v. Amazon.com, Inc. (In re Amazon.com, Inc.), 852 F.3d 601, 2017 FED App. 0073P, 2017 U.S. App. LEXIS 5622 (6th Cir. Ky. 2017 ).

U.S. Supreme Court's Integrity Staffing Solutions, Inc. v. Busk ruling that post-shift security screening was a noncompensable postliminary activity applied under the Kentucky Wages and Hours Act (KWHA) because the KWHA incorporated the Portal-to-Portal Act, 29 U.S.C.S. § 251, compensation limits on preliminary and postliminary activities. Vance v. Amazon.com, Inc. (In re Amazon.com, Inc.), 852 F.3d 601, 2017 FED App. 0073P, 2017 U.S. App. LEXIS 5622 (6th Cir. Ky. 2017 ).

7. Federal Law.

This section is preempted by federal law as to regulation of interstate railroads. R.J. Corman R.R. Company/Memphis Line v. Palmore, 999 F.2d 149, 1993 U.S. App. LEXIS 17601 (6th Cir. Ky. 1993 ).

Since the Fair Labor Standards Act, 29 USCS § 201 et seq., automatically entitled all employees to overtime pay unless those employees fell under a specified exemption, and individual who were employed in a bona fide supervisory capacity were not employees at all under KRS 337.285 , this distinct structural difference rendered the federal case law regarding the allocation of the burden of proof inapposite. City of Louisville, Div. of Fire v. Fire Serv. Managers Ass'n by & Through Kaelin, 212 S.W.3d 89, 2006 Ky. LEXIS 296 ( Ky. 2006 ).

8. Sovereign Immunity.

Where county employees alleged that the county violated the Fair Labor Standards Act, 29 USCS § 201 et seq., and the Kentucky Wages and Hours Act, KRS ch. 37, their state law claims were barred by sovereign immunity, which was not waived by provisions in KRS 337.285 , 337.385 . Crawford v. Lexington-Fayette Urban County Gov't, 2007 U.S. Dist. LEXIS 2567 (E.D. Ky. Jan. 9, 2007).

In firefighters’ action seeking overtime wages and related benefits, county was entitled to sovereign immunity because KRS 337.285 of the Kentucky Wage and Hour Act did not expressly or by implication waive immunity; in addition, county ordinances and policies did not constitute a “contract” for which immunity was waived. Blankenship v. Lexington-Fayette Urban County Gov't, 2010 Ky. App. LEXIS 145 (Ky. Ct. App. Aug. 20, 2010).

Sovereign immunity was waived in an action alleging overtime wage violations under KRS 337.285 that was brought against a county government by currently employed, retired, and formerly employed firefighters, and a trial court thus erred in dismissing the action based upon that defense, because a statute directing a governmental unit to pay its employees in a prescribed manner necessarily and overwhelmingly implied a waiver of immunity from liability to the employees for nonpayment. Blankenship v. Lexington-Fayette Urban Cnty. Gov't, 2012 Ky. App. Unpub. LEXIS 1069 (Ky. Ct. App. May 4, 2012), vacated, 2015 Ky. LEXIS 1720 (Ky. May 6, 2015).

9. Statute of Limitations.

Where firefighters challenged a city’s calculations of their overtime pay, the five-year limitations period of KRS 413.120 was not equitably tolled by operation of KRS 413.190(2), as there was no evidence the city concealed its overtime pay calculations or obstructed the prosecution of firefighters’ claims regarding overtime pay. Commonwealth v. Hasken, 265 S.W.3d 215, 2007 Ky. App. LEXIS 244 (Ky. Ct. App. 2007).

10. Overtime.

Municipal order which revised an overtime policy for city employees did not allow appellee city police officer to claim overtime after working 40 hours and claiming two additional hours of annual leave time; the order did not violate KRS 95.495(1) as the plain language of the statute only permitted overtime payment for any work performed. City of Bowling Green v. Helbig, 399 S.W.3d 445, 2012 Ky. App. LEXIS 195 (Ky. Ct. App. 2012).

Employee was not entitled to liquidated damages for an employer's failure to pay overtime because the employer acted in good faith by giving the employee extra work to assist the employee and not to thwart underlying public policy. Starr v. Louisville Graphite, Inc., 2016 Ky. App. LEXIS 58 (Ky. Ct. App. Apr. 22, 2016).

Cited:

McMichael v. Falls City Towing Co., 199 F. Supp. 2d 632, 2002 U.S. Dist. LEXIS 8170 (W.D. Ky. 2002 ).

Opinions of Attorney General.

Overtime in one workweek cannot be credited to undertime in a subsequent workweek. OAG 74-393 .

Since the federal basic minimum wage is higher than the state minimum wage under KRS 337.275 , the federal law applies to state and local employees, but since the state law has a lower workweek before overtime provisions apply to state and local employees, including policemen, firemen and security officers under this section, the state law as to overtime is applicable and, pursuant to KRS 337.050 , state and local employees who work seven (7) days in any one workweek must be paid time and a half for the seventh day. OAG 74-532 .

Overtime payment is required for time spent over 40 hours per workweek and policemen, who are not excluded employees, cannot be given compensable time as a credit against overtime. OAG 74-593 .

An individual may be scheduled to work a ten (10) hour day four (4) days a week to make his 40 hours. OAG 74-593 .

The Kentucky minimum wage law places no restrictions or requirements on holidays or weekends, but it affects the “seventh day law” (KRS 337.050 ), and if a county employee, such as a policeman, works seven (7) consecutive days during his workweek, he has to be paid time and one half (1/2) his regular rate of pay on the seventh day of that workweek unless his total hours are 40 or less during the workweek. OAG 74-593 .

The Kentucky minimum wage law merely sets the minimum wage for the first 40 hours of work per week and does not preclude an employer from employing his employees beyond 40 hours per week or eight (8) hours per day. OAG 74-593 .

If a city chief of police on 24-hour call seven (7) days a week and receiving $400 per month plus the use of a city apartment meets the definition of an executive, administrative, supervisory or professional employee, he should be excluded from the Kentucky minimum wage law, and by implication from the overtime provisions, but if he does not meet the definition, then he must be paid minimum wages and be covered for overtime. OAG 74-602 .

If employees exchange hours of work and it results in excess hours for a particular employee, that employee must be paid time and a half over 40 hours in any one (1) workweek, as the state minimum wage law does not authorize the payment of minimum wages to positions, but to persons. OAG 74-694 .

Both the state and federal minimum wage laws require proper record keeping, and if a city were to report that two (2) firemen each worked 40 hours, when in fact they had exchanged hours of work and one (1) fireman worked 80 hours while the other had not worked, then the report would be in violation of proper record keeping. OAG 74-694 .

Under KRS 337.010 all automobile dealerships which do $95,000 gross annual sales, exclusive of excise taxes, are covered under the state minimum wage law. Automobile salesmen are excluded both from the state minimum wage and the overtime section of the law. Parts managers are covered by the minimum wage but are excluded from the overtime provisions, and mechanics are neither excluded from the minimum wage nor the overtime provisions and must be paid time and a half their regular rate of pay for all hours worked in excess of 40 hours per workweek. OAG 74-777 .

Tobacco workers employed not by farmers but by warehousemen and engaged in stripping, sorting, grading, buying, stemming, redrying, packing and storing tobacco are not “employed in agriculture” within the exemption provision of KRS 337.010 and are entitled to the minimum wage and overtime provisions of KRS 337.275 and this section. OAG 75-55 .

Policemen required to attend special training school should be considered on working time and paid at that rate, and only where the criteria of Department of Labor regulation 803 KAR 1:065(6)(1) are present would the attendance not be considered working time. OAG 75-216 .

Based upon the state minimum wage law and the regulations pertaining thereto, it would be illegal to allow officers covered by the overtime provisions to receive time off or compensatory time instead of wages for overtime hours. OAG 75-216 .

If a police officer is required to spend time in court, it is considered working time, and whether he receives time and a half for such time will depend upon whether his total hours in the specific workweek in which the court time occurred were over 40 hours. OAG 75-216 .

Arrest fees of policemen must be included in their total compensation in order to arrive at a rate upon which overtime compensation can be computed. OAG 75-371 .

Assuming the state minimum wage law is constitutional for public officers and is ratified by the Court of Appeals in a pending case, a city may not require its police officers to work 48 hours a week without paying overtime for the hours worked in excess of 40 and may not circumvent the law by juggling straight time and overtime rates to achieve a lesser gross monthly pay. OAG 75-607 .

An election officer is not covered by this section as he is not an “employee” within the meaning of KRS 337.010 . OAG 75-664 .

Any police officer required to work over 40 hours during any workweek would be entitled to overtime pay. OAG 76-287 .

A police officer’s hourly wage rate and what he receives through the city’s participation in the K.L.E.F.P.F. program must both be included in the officers total compensation in order to arrive at a rate upon which overtime compensation can be computed. OAG 76-361 .

In view of the fact that by extensive regulation of the trucking industry Congress has pre-empted the area of maximum hours and overtime pay for those trucking employees subject to the Motor Carriers Act, this section cannot be applied to motor carrier employees exempted by the Federal Fair Labor Standards Act. OAG 77-65 .

A county official who works employees over a 40-hour week where said employees are paid a monthly salary can be held liable to pay the overtime rate and liquidated damages where applicable. The county would be the employer where a county employee is involved or where an employee’s salary, even though he is a deputy of a constitutional officer, is funded out of the county treasury; thus, the “employer” liability will follow the usual source of funding of the affected employee’s compensation. OAG 77-504 .

Where time and a half payment for overtime is involved, such money will come from the same source that the ordinary salary comes from; if a deputy jailer is paid wholly out of the fees of the jailer, then the jailer would be responsible for seeing that the time and a half payments were paid out of his fees, but if the deputy jailer was compensated wholly out of the county treasury, then the time and a half pay would have to come out of the county treasury. OAG 78-565 .

If police officers attend a job related training session which is held in addition to their required workweek, they must be compensated for the hours put forth at the training session, which would be considered working time, pursuant to the overtime pay provisions of this section and they could not receive compensatory time instead of wages for overtime hours. OAG 79-206 .

There are no provisions in the minimum wage and overtime pay provisions allowing police officers to receive time off work or compensatory time instead of wages for overtime hours. OAG 79-296 .

This state’s minimum wage and overtime pay provisions do not exclude police officers unless they are classified as executive, administrative, professional or supervisory personnel and ordinary police officers do not fall within this exclusion. OAG 79-296 .

Employees of the county clerk, jailer and sheriff must be paid overtime, at the rate of time and a half, when they work longer than a 40 hour week, and such overtime payment must be paid from the “75% fund” set up by Const., § 106. OAG 81-123 .

Deputy sheriffs are subject to time and a half for employment in excess of 40 hours. OAG 82-118 .

A city may give its police officers a one-hour lunch period and still require that those police officers work an eight-hour shift. Although police officers cannot be required to work more than eight (8) hours per day, except in an emergency, the lunch break is not usually considered worktime. OAG 82-143 .

A county clerk had the authority to authorize his deputies to work in excess of a 40-hour workweek, where it was reasonably necessary to carry out his statutory duties. This section mandates the payment of overtime (time and a half) where the deputy works longer than a 40-hour week and the overtime payment must come from the same source that the regular salary comes from; in the case of the county clerk, such payment would come from the fees of the office, or from the county treasury, or from a combination of both sources. OAG 82-478 .

Acts 1982, ch. 385 does not require that jail employees’ benefits be the same as benefits received by other county employees. Jail employees are subject to the state minimum wage law which requires that certain employees, not excepted, be paid time and a half for hours worked in excess of 40 hours per week. OAG 82-505 .

KRS 337.285 , providing for time and a half for employment in excess of 40 hours, applies to the jailer as employer and the jail matron as an employee of the jailer; however, if the jail matron is the wife of the jailer, then under KRS 337.010(2)(a)(vi), (now subdivision (2)(a) 6.) such a spouse of the employer would be exempt from the operation of KRS Chapter 337 since, under that subsection a spouse of the employer is expressly exempt. OAG 82-625 .

Since the jailer has the direct supervision over his deputies, including the matron, he has the direct responsibility of determining precisely the necessary work schedule and must use good judgment in authorizing overtime. OAG 82-625 .

If a county jailer employs a matron who is of no relation to the jailer, he must carefully determine whether the time in excess of a 40 hour week is “actually necessary”; where the overtime is not shown to be actually necessary in the exercise of the deputy’s or matron’s public function, such overtime would not be valid against the “jail” budget or the general county budget. Where overtime is not shown to be in the “public good,” this is equivalent to saying that the extra time is not necessary. OAG 82-625 .

Where it is shown that a jailer is guilty of mismanagement in creating an “overtime” situation, he will be liable on his bond under KRS 71.010 ; such jailer, where he illegally creates an overtime situation, would finally be personally responsible to the employee for the overtime. OAG 82-625 .

Where this section (time and a half) is properly applied (extra time is necessary), then if the “jail budget” part of the county budget does not contain the money to pay for such overtime, the fiscal court is responsible for paying it, since the fiscal court has the overall duty of maintaining a county jail operation regardless of whether it admits an employer-employee relationship or not. In such situation the “employer” is still the jailer under KRS Chapter 337. OAG 82-625 .

Prior to July 1, 1982, the effective date of the 1982 amendment to KRS 441.005 , relating to definition of “county jail,” the jailer, and, if necessary (where jailer had no funds for that purpose) the fiscal court, was responsible for providing for any overtime worked by the deputy jailers. OAG 82-626 .

This section (overtime pay) applied to jail deputies and matrons prior to the enactment of Acts 1982, ch. 385, except where the deputy or matron was the parent, spouse, child or other member of the jailer’s immediate family. OAG 82-626 .

Prior to the enactment of Acts 1982, ch. 385, where the time in excess of 40 hours was authorized by the jailer, the time and one half (1/2) payment was a claim against the jailer’s fees; where he had no fees available, the county treasurer, where a properly budgeted sum was available, was answerable to such payment for overtime, under the concept that the county jail was a county institution, even though the jailer was immediately in charge of the jail, and the fiscal court was ultimately or derivatively responsible for the effective operation of that county institution. OAG 82-626 .

On and after July 1, 1982, the effective date of Acts 1982, ch. 385, the county treasurer at the discretion of the jailer is responsible for payment of overtime to the deputy jailer and matron out of the jail budget part of the county budget, assuming that the overtime is necessary and that such an expenditure is within an authorized budget category, as covered in KRS 441.008(2) (now 441.235(2)); if not, then the fiscal court will have to pay it out where such funds are available. OAG 82-626 .

The determination of whether overtime is actually necessary is a responsibility of the jailer and lies within his sound discretion. OAG 82-626 .

The jailer should authorize work in excess of 40 hours (per week) only where necessary; where it is shown that a jailer is guilty of mismanagement in authorizing an “overtime situation,” he would be personally liable, and liable on his bond for the payment of the overtime to the deputy or matron and the claim would not be payable from the jail fund or county treasury. Where the overtime is necessary, the claim for overtime must now be paid from the jail fund, or from the county treasury generally, where there are no jail budget funds to pay it. OAG 82-626 .

Overtime payments are not wage fixations or adjustments in terms of KRS 64.530 governing compensation of county officers; overtime payments are simply calculated at one and one-half (11/2) of the regular salary rate established by fiscal court. OAG 84-183 .

The fiscal court has no authority to require its approval for overtime work of deputies of local constitutional officers where the deputy’s salary is paid out of the sheriff’s fees. OAG 84-183 .

If it appeared that overtime work by sheriff’s deputy was reasonably necessary to carry out the sheriff’s duties, then the fiscal court must give the sheriff credit in the yearly settlement for the amount of overtime pay the sheriff effected from the funds of his office; the overtime should normally be paid out of the salary source, which was the county treasury for the particular deputy sheriff. If the fiscal court refuses to credit the sheriff’s payment of overtime, assuming that the overtime work was reasonably necessary, the fiscal court would be acting arbitrarily, contrary to Const., § 2. OAG 84-183 .

County may continue to allow employees to work in excess of 40 hours per week, but, in compliance with 29 USCS 207(a) (1) and this section, the county must compensate employees who do so at the rate of one and one half (11/2) times the hourly wage rate at which the individuals are employed, and, in compliance with this section, the County must compensate the employees in wages, not in compensatory time off. OAG 91-187 .

Research References and Practice Aids

Cross-References.

Liability of employer for payment of less than wages and overtime compensation to which employee is entitled, KRS 337.385 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

337.290. Revision of wage order. [Repealed.]

Compiler’s Notes.

This section (4767a-10) was repealed by Acts 1974, ch. 391, § 14.

337.295. Administrative regulations.

Regulations issued by the commissioner under KRS 337.275 to 337.325 , 337.345 , and 337.385 to 337.405 may include, but are not limited to, regulations defining and governing bona fide executive, administrative, or professional employees; regulations governing learners, apprentices, workers with disabilities, sheltered workshop employees, and students, regulations governing outside salesmen; bonuses; part-time rates; special pay for special or extra work; allowances as part of the wage rates applicable under KRS 337.275 for board, lodging, and gratuities; other facilities or services furnished by employers and used by employees; and other special items usual in a particular employer-employee relationship.

History. Enact. Acts 1974, ch. 391, § 4; 1994, ch. 405, § 86, effective July 15, 1994; 2010, ch. 24, § 1730, effective July 15, 2010.

NOTES TO DECISIONS

1. Constitutionality.

This section, in giving the secretary of labor the power to issue regulations defining and governing provisions for minimum wages and overtime payments, did not constitute an invalid delegation of legislative authority under Const., §§ 27 and 28. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

Opinions of Attorney General.

Regulation LAB-6 defines an individual employed in a bona fide executive capacity. OAG 74-602 .

337.300. Revision of administrative regulations. [Repealed.]

Compiler’s Notes.

This section (4767a-11) was repealed by Acts 1974, ch. 391, § 14.

337.310. Appeal of commissioner’s order or decision.

All orders or decisions of the commissioner issued or made under KRS 337.020 to 337.405 may be appealed, and upon appeal an administrative hearing shall be conducted in accordance with KRS Chapter 13B.

History. 4767a-12: amend. Acts 1974, ch. 391, § 5; 1978, ch. 340, § 3, effective June 17, 1978; 1996, ch. 318, § 313, effective July 15, 1996; 2010, ch. 24, § 1731, effective July 15, 2010.

NOTES TO DECISIONS

  1. Limited Review.
  2. Jurisdiction.
1. Limited Review.

Review is limited to a determination of whether or not the finding of the Secretary is supported by what is variously described as substantial evidence, evidence of substance, or evidence of probative value. Middlekamp v. Willis, 267 S.W.2d 924, 1953 Ky. LEXIS 1228 (Ky. Ct. App. 1953).

2. Jurisdiction.

The jurisdiction of the Circuit Court attaches to wage concerns only after the facts have been decided by the commissioner. Review by the Circuit Court is restricted to certain concerns delineated not only by this section, but also by 803 KAR 1:035(9, 10). Early v. Campbell County Fiscal Court, 690 S.W.2d 398, 1985 Ky. App. LEXIS 510 (Ky. Ct. App. 1985), overruled, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ).

The Commissioner (now Secretary) of Labor has original jurisdiction only in those wage and hour disputes in which the duty to provide the benefits sought by the claimant derives solely from the Workers’ Compensation Act, not from an agreement between the parties as to the terms and conditions of employment, and in those situations in which the parties agree to have their disputes resolved by the administrative route and the parties thereby waive their right to seek a judicial remedy. Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986), overruled in part, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ).

Where the basis for the employee’s claim emanated from his contract of employment with the employer, this section did not prevent the trial court from exercising jurisdiction. Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986), overruled in part, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ).

Cited:

Young v. Willis, 305 Ky. 201 , 203 S.W.2d 5, 1947 Ky. LEXIS 773 ( Ky. 1947 ); Hotel & Restaurant Ass’n v. Commissioner of Dep’t of Indus. Relations, 374 S.W.2d 501, 1963 Ky. LEXIS 178 ( Ky. 1963 ); McMichael v. Falls City Towing Co., 199 F. Supp. 2d 632, 2002 U.S. Dist. LEXIS 8170 (W.D. Ky. 2002 ).

Opinions of Attorney General.

Since the Secretary may decide questions arising out of any statute from KRS 337.020 to 337.405 , any subject matter contained therein would be covered, and some of these statutes deal with subjects other than minimum wages. OAG 78-697 .

337.320. Record to be kept by employer.

  1. Every employer shall keep a record of:
    1. The amount paid each pay period to each employee;
    2. The hours worked each day and each week by each employee; and
    3. Such other information as the commissioner requires.
  2. Such records shall be kept on file for at least one (1) year after entry. They shall be open to the inspection and transcript of the commissioner or the commissioner’s authorized representative at any reasonable time, and every employer shall furnish to the commissioner or the commissioner’s authorized representative on demand a sworn statement of them. The commissioner may require the statement to be upon forms prescribed or approved by him or her.

History. 4767a-13: amend. Acts 1966, ch. 158, § 6; 1974, ch. 391, § 6; 2010, ch. 24, § 1732, effective July 15, 2010.

NOTES TO DECISIONS

  1. Construction.
  2. Subpoena of Records.
1. Construction.

The phrase “at least one (1) year” means the records must be kept not less than one (1) year, but it does not prohibit their retention for more than one (1) year. Cabe v. Kitchen, 415 S.W.2d 96, 1967 Ky. LEXIS 300 ( Ky. 1967 ).

2. Subpoena of Records.

Fact that records are required to be kept for at least one (1) year does not restrict the Secretary’s rights of inspection to records kept during that period, and subpoena for records in existence prior to the one-year period was valid. Cabe v. Kitchen, 415 S.W.2d 96, 1967 Ky. LEXIS 300 ( Ky. 1967 ).

Opinions of Attorney General.

Both the state and federal minimum wage laws require proper record keeping, and if a city were to report that two firemen each worked 40 hours in a week when, in fact, they had exchanged hours of work and one (1) fireman worked 80 hours while the other had not worked, then the report would be in violation of proper record keeping. OAG 74-694 .

337.325. Posting of summaries of wage and hour laws, orders, and regulations by employers.

Every employer subject to any provision of KRS 337.275 to 337.325 , 337.345 , and 337.385 to 337.405 or of any regulations or orders issued under KRS 337.295 shall keep copies of such summaries of wage and hour laws and regulations issued under KRS 337.295 posted in a conspicuous and accessible place in or about the premises wherein any person subject thereto is employed. Employers shall be furnished copies of such summaries, orders and regulations by the state on request without charge. Failure to mail such summaries to an employer shall not relieve the employer from the duty of complying with the provisions.

History. Enact. Acts 1974, ch. 391, § 8.

337.330. Employer to post minimum fair-wage order. [Repealed.]

Compiler’s Notes.

This section (4767a-14: amend. Acts 1966, ch. 158, § 7) was repealed by Acts 1974, ch. 391, § 14.

337.340. Power to question employees.

Every employer shall permit the commissioner or the commissioner’s authorized agent to question any of his or her employees in the place of employment and during work hours in respect to the wages paid to and the hours worked by such employee or other employees.

History. 4767a-15; 2010, ch. 24, § 1733, effective July 15, 2010.

NOTES TO DECISIONS

1. Hearing.

Secretary of Labor was authorized to hold hearing on employer’s liability for difference between wages paid and minimum wages. Cabe v. Eubanks, 411 S.W.2d 334, 1967 Ky. LEXIS 467 ( Ky. 1967 ).

337.345. Confidentiality of information.

Except as otherwise provided in this section, the department shall not disclose the identity of any individual filing a complaint or request for inspection under any section of this chapter, except as necessary to enforce, and then only with the specific written permission of the complainant.

Except as otherwise provided in this section, information secured from inspection of the records, or from the transcriptions thereof, or from inspection of the employer’s premises by the commissioner or the commissioner’s authorized representatives, shall be held confidential and shall not be disclosed or be open to any person except such information may be made available to:

  1. Officials concerned with, and for the purposes of administration of the laws relating to matters under the jurisdiction of the commissioner;
  2. Any agency of this or any other state, or any federal agency for the purpose of enforcing KRS 337.275 to 337.325 , 337.345 , and 337.385 to 337.405 ; and
  3. To the Wage and Hour and Public Contracts Division of the United States, Department of Labor.

History. Enact. Acts 1974, ch. 391, § 7; 1978, ch. 340, § 6, effective June 17, 1978; 2010, ch. 24, § 1734, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ).

Opinions of Attorney General.

The Labor Cabinet properly denied a request by an attorney, on behalf of a city, for a copy of a complaint filed with the cabinet initiating a prevailing wage inspection of the city, as, pursuant to this section, the cabinet was prohibited from releasing the complaint and any information identifying employees contacted by the cabinet in its investigation concerning the workplace violation. OAG 99-ORD-15.

Pursuant to KRS 337.345 , in tandem with KRS 61.878(1)(l), the Cabinet is prohibited from releasing the complaint, the name of the complainant, and any information identifying employees contacted by the Cabinet in its investigation, and information secured from inspection of the records, or from the transcriptions thereof, or from inspection of the employer’s concerning the violation. OAG 02-ORD-157.

337.350. Employer not to discriminate or pay less than fair wage. [Repealed.]

Compiler’s Notes.

This section (4767a-16: amend. Acts 1966, ch. 158, § 8) was repealed by Acts 1974, ch. 391, § 14.

337.355. Lunch period requirements.

Employers, except those subject to the Federal Railway Labor Act, shall grant their employees a reasonable period for lunch, and such time shall be as close to the middle of the employee’s scheduled work shift as possible. In no case shall an employee be required to take a lunch period sooner than three (3) hours after his work shift commences, nor more than five (5) hours from the time his work shift commences. This section shall not be construed to negate any provision of a collective bargaining agreement or mutual agreement between the employee and employer.

History. Enact. Acts 1974, ch. 333, § 1.

NOTES TO DECISIONS

Analysis

  1. Class Actions.
  2. Jury Instruction.
1. Class Actions.

In an employee’s complaint seeking compensation for off-the-clock work under KRS 337.385 and for a denial of meal and rest breaks in violation of KRS 337.355 and 337.365 , he failed as a matter of law to carry his burden of establishing that class action claims predominated and that the institution of a class action would be a superior and more efficient means by which to resolve the parties’ wage and hour dispute under Fed. R. Civ. P. 23(b)(3). In a class action, the court would be left with a series of mini-trials on questions of both liability and damages involving if not hundreds, at a minimum, dozens of plaintiff employees who would rightfully be required to come forward and prove that they were required by their manager(s) to work off-the-clock and/or were denied lunch and rest breaks, when such events did occur, the duration of such events, and their resulting losses, both monetary and non-monetary. England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

Employer was not entitled to summary judgment in an employee’s action seeking compensation for off-the-clock work and for a denial of meal and rest breaks. A private cause of action exists under KRS 446.070 for damages suffered as the result of a denial of lunch and rest breaks in violation of KRS 337.355 and 337.365 . England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

There was no factual basis in the record for a reasonable juror to impose punitive damages based on an employer’s fraud, malice, or oppression under KRS 411.184(2) for off-the-clock work and for a denial of meal and rest breaks in violation of KRS 337.355 and 337.365 . At most, the employee was trained by his store manager to clock out earlier in the store closing procedures than the company’s written store closing procedures required. England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

2. Jury Instruction.

In a case brought under the Kentucky Wages and Hours Act, a trial court did not err by instructing the jury that, for purposes of this statute, a bona fide meal break was determined by the predominant benefit test; moreover, a jury instruction properly informed the jury that it was the employees' burden to prove that they missed specific meal breaks and acted reasonably to be compensated for them. The employees' claims that they missed lunch practically every day due to the fact that they were carrying a radio did not establish with specificity a claim for compensable time. Hisle v. CorrectCare-Integrated Health, Inc., 2015 Ky. App. LEXIS 89 (Ky. Ct. App. June 12, 2015), review denied, ordered not published, 2016 Ky. LEXIS 136 (Ky. Mar. 9, 2016).

Notes to Unpublished Decisions

1. Class Actions.

Unpublished decision: Employees could not be certified as class for their state-law claims, because district court properly granted summary judgment on employees' state-law claims regarding whether they were guaranteed meal and rest breaks. Jones-Turner v. Yellow Enteprise Sys., LLC, 597 Fed. Appx. 293, 2015 FED App. 0003N, 2015 U.S. App. LEXIS 326 (6th Cir. Ky. 2015 ).

337.360. Right to collect fair wage. [Repealed.]

Compiler’s Notes.

This section (4767a-17: amend. Acts 1966, ch. 158, § 9) was repealed by Acts 1974, ch. 391, § 14.

337.365. Rest periods for employees.

No employer shall require any employee to work without a rest period of at least ten (10) minutes during each four (4) hours worked, except those employees who are under the Federal Railway Labor Act. This shall be in addition to the regularly scheduled lunch period. This section shall not apply where a collective bargaining agreement provides for a total number of minutes that are equal to or exceed ten (10) minutes accrued for each four (4) hours of work. If a collective bargaining agreement does not contain provisions allowing rest periods, employers shall allow a rest period of at least ten (10) minutes during each four (4) hours worked. No reduction in compensation shall be made for hourly or salaried employees.

History. Enact. Acts 1958, ch. 36, § 1; 1974, ch. 386, § 106; 1980, ch. 356, § 1, effective July 15, 1980; 2020 ch. 48, § 1, effective March 27, 2020.

Compiler’s Notes.

The Federal Railway Labor Act referred to in this section is compiled at 45 USCS §§ 151 et seq.

NOTES TO DECISIONS

Analysis

  1. Class Actions.
  2. Rest breaks.
1. Class Actions.

In an employee’s complaint seeking compensation for off-the-clock work under KRS 337.385 and for a denial of meal and rest breaks in violation of KRS 337.355 and 337.365 , he failed as a matter of law to carry his burden of establishing that class action claims predominated and that the institution of a class action would be a superior and more efficient means by which to resolve the parties’ wage and hour dispute under Fed. R. Civ. P. 23(b)(3). In a class action, the court would be left with a series of mini-trials on questions of both liability and damages involving if not hundreds, at a minimum, dozens of plaintiff employees who would rightfully be required to come forward and prove that they were required by their manager(s) to work off-the-clock and/or were denied lunch and rest breaks, when such events did occur, the duration of such events, and their resulting losses, both monetary and non-monetary. England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

Employer was not entitled to summary judgment in an employee’s action seeking compensation for off-the-clock work and for a denial of meal and rest breaks. A private cause of action exists under KRS 446.070 for damages suffered as the result of a denial of lunch and rest breaks in violation of KRS 337.355 and 337.365 . England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

There was no factual basis in the record for a reasonable juror to impose punitive damages based on an employer’s fraud, malice, or oppression under KRS 411.184(2) for off-the-clock work and for a denial of meal and rest breaks in violation of KRS 337.355 and 337.365 . At most, the employee was trained by his store manager to clock out earlier in the store closing procedures than the company’s written store closing procedures required. England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

2. Rest breaks.

Store managers’ claims that the employer prevented them from taking rest breaks was rejected where the managers provided no evidence that the employer had a policy in place that denied them the opportunity to take rest breaks, and deposition testimony revealed that the managers in fact often took breaks. Barker v. Family Dollar, Inc., 2012 U.S. Dist. LEXIS 153331 (W.D. Ky. Oct. 25, 2012).

Cited:

Noel v. Season-Sash, Inc., 722 S.W.2d 901, 1986 Ky. App. LEXIS 1498 (Ky. Ct. App. 1986), overruled in part, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ), overruled in part as stated, Roby v. Midstates Indus. Group, Inc., — F. Supp. 2d —, 2006 U.S. Dist. LEXIS 78243 (W.D. Ky. Oct. 23, 2006).

Notes to Unpublished Decisions

1. Class Actions.

Unpublished decision: Employees could not be certified as class for their state-law claims, because district court properly granted summary judgment on employees' state-law claims regarding whether they were guaranteed meal and rest breaks. Jones-Turner v. Yellow Enteprise Sys., LLC, 597 Fed. Appx. 293, 2015 FED App. 0003N, 2015 U.S. App. LEXIS 326 (6th Cir. Ky. 2015 ).

Opinions of Attorney General.

A female employee who is required to work for a four-hour period must be given a ten-minute rest period some time during that four-hour period. The time when the rest period is to be granted is discretionary with the employer. The employee cannot be docked for taking the rest period and if she is docked she can exercise her remedies under the law to recover the lost wages. OAG 62-990 .

The regularly scheduled lunch period should not be considered a “work” period. OAG 70-611 .

The test of how many rest periods are required is — how many hours does the employee “work,” regardless of how the period is broken by lunch periods. OAG 70-611 .

This section, KRS 337.370 (repealed) and 337.380 (repealed) are preempted by title VII, Civil Rights Act of 1964, for those employers covered by that title where the fact situations involve a necessary conflict between state and federal law. OAG 72-461 (opinion prior to 1974 amendment withdraws OAG 69-334 ).

The term “employee” as used in this section includes certified personnel employed in public schools. OAG 76-187 .

Since this section does not apply to meal periods except to state that the rest period is in addition to a regularly scheduled lunch period, there would be no conflict between this section and an agreement between an employer and his employees concerning unpaid meal periods. OAG 77-68 .

Since Congress has assumed the regulation and control of interstate commerce, this section cannot be applied to drivers, drivers’ helpers, loaders, mechanics and other employees of interstate motor carriers who perform activities affecting the safety or operation of motor vehicles in the transportation on the public highways of passengers or property. OAG 77-335 .

The obligatory ten-minute rest period required by this section must be considered as working time; thus, where an employee actually works a minimum of three (3) hours and 50 minutes, a ten-minute rest period must be added to the hours worked, to determine the number of rest periods and wherein each one occurs. OAG 84-251 .

The rest period required by this section must be given during the four (4) hours worked and, since a ten-minute rest period is considered work time (and must be compensated therefor), an employer could not work an employee more than three (3) hours and 50 minutes without giving him a rest period since the total hours worked would be four (4) hours; otherwise, an employer could work an employee three (3) hours and 59 minutes and thus avoid the rest period. OAG 84-251 .

Research References and Practice Aids

Kentucky Law Journal.

The “Equal Rights” Amendment — Positive Panacea or Negative Nostrum?, 59 Ky. L.J. 953 (1971).

337.370. Hours of work for infant female limited. [Repealed.]

Compiler’s Notes.

This section (4866b-1: amend. Acts 1968, ch. 100, § 7) was repealed by Acts 1974, ch. 391, § 14.

337.380. Hours of work for any female limited. [Repealed.]

Compiler’s Notes.

This section (4866b-2) was repealed by Acts 1974, ch. 391, § 14.

337.385. Employer’s liability — Unpaid wages and liquidated damages — Punitive damages for forced labor or services.

  1. Except as provided in subsection (3) of this section, any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court.
  2. If, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he or she had reasonable grounds for believing that his or her act or omission was not a violation of KRS 337.020 to 337.285 , the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.
  3. If the court finds that the employer has subjected the employee to forced labor or services as defined in KRS 529.010 , the court shall award the employee punitive damages not less than three (3) times the full amount of the wages and overtime compensation due, less any amount actually paid to such employee by the employer, and for costs and such reasonable attorney’s fees as may be allowed by the court, including interest thereon.
  4. At the written request of any employee paid less than the amount to which he or she is entitled under the provisions of KRS 337.020 to 337.285 , the commissioner may take an assignment of such wage claim in trust for the assigning employee and may bring any legal action necessary to collect such claim, and the employer shall be required to pay the costs and such reasonable attorney’s fees as may be allowed by the court. The commissioner in case of suit shall have power to join various claimants against the same employer in one (1) action.

History. Enact. Acts 1974, ch. 391, § 9; 1978, ch. 340, § 4, effective June 17, 1978; 2010, ch. 24, § 1735, effective July 15, 2010; 2013, ch. 25, § 25, effective June 25, 2013.

NOTES TO DECISIONS

Analysis

  1. Jurisdiction of Court.
  2. Collective Bargaining Agreement.
  3. Damages.
  4. Type of Employee.
  5. Sovereign Immunity.
  6. Class Actions.
  7. De Minimis.
  8. Preemption.
  9. Attorney Fees.
1. Jurisdiction of Court.

Although the Circuit Court is a court of competent jurisdiction as referred to in subsection (1) of this section, it is not one of original jurisdiction; thus its competent jurisdiction does not attach until after the labor commissioner (now secretary) has conducted his own proceeding, i.e. it is involved only in review, not initial resolution. Early v. Campbell County Fiscal Court, 684 S.W.2d 316, 1985 Ky. App. LEXIS 729 (Ky. Ct. App.), op. withdrawn, 690 S.W.2d 398, 1985 Ky. App. LEXIS 510 (Ky. Ct. App. 1985).

The jurisdiction of the Circuit Court attaches to wage concerns only after the facts have been decided by the commissioner (now secretary). Review by the Circuit Court is restricted to certain concerns delineated not only by KRS 337.310 , but also by 803 KAR 1:035(9, 10). Early v. Campbell County Fiscal Court, 690 S.W.2d 398, 1985 Ky. App. LEXIS 510 (Ky. Ct. App. 1985), overruled, Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ).

Circuit Court had original subject matter jurisdiction over a wage and hour dispute between an employer and employee pursuant to KRS 337.385 , and original jurisdiction is not vested exclusively in the Department of Labor. Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ).

Based on the decision in Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 2005 Ky. LEXIS 234 ( Ky. 2005 ), it was clear that KRS 337.385(1) unambiguously authorized an uncompensated or under compensated employee to sue an employer in federal district court, and thus, the district court erred when it held that it lacked jurisdiction over an employee’s wage claim. Oaks v. 3M Co., 453 F.3d 781, 2006 U.S. App. LEXIS 16170 (6th Cir. 2006).

KRS 337.385 barred proceeding to a civil lawsuit until the Kentucky Labor Commissioner had conducted his own proceeding; claims brought pursuant to KRS 337.385 had to first be raised before the Kentucky Labor Cabinet to resolve questions of fact. Because the employee failed to comply with that requirement in his wage claim, the employee could not avail himself of the benefits of KRS 337.385. Davis v. Siemens Med. Solutions USA, Inc., 399 F. Supp. 2d 785, 2005 U.S. Dist. LEXIS 27232 (W.D. Ky. 2005 ), aff'd, 279 Fed. Appx. 378, 2008 FED App. 0300N, 2008 U.S. App. LEXIS 11934 (6th Cir. Ky. 2008 ).

2. Collective Bargaining Agreement.

Provision in collective bargaining agreement between city and fraternal order of police, to the effect that for overtime in excess of 30 minutes the member should be paid the overtime rate for a full hour, and that overtime of less than 30 minutes should not be paid, was not invalid under KRS 337.285 or subsection (1) of this section. Orms v. Louisville, 686 S.W.2d 464, 1984 Ky. App. LEXIS 612 (Ky. Ct. App. 1984).

3. Damages.

Where, in exchange for the employee’s resignation, the employer agreed to pay him ninety (90) days severance pay, his accrued vacation pay, and two (2) personal days pay, but the employer paid the employee all but one (1) week of the ninety (90) days severance pay, and refused to pay him the accrued vacation pay and the two (2) personal days pay, the trial court was correct in finding that the employer acted in bad faith and was, therefore, liable to the employee for damages, attorney fees, and costs. Healthcare of Louisville v. Kiesel, 715 S.W.2d 246, 1986 Ky. App. LEXIS 1214 (Ky. Ct. App. 1986).

Former salesman’s election to plead part of his case as a common law breach of contract and fraud relieved him of the KRS 413.120(12) statute of limitations which applied to statutory claims, but also foreclosed him from the liquidated damages and attorneys fees provided for by KRS 337.385(1). Any other result seemed unfair because it would have allowed a plaintiff to characterize his claim as a common law claim for purposes of an advantageous statute of limitations, but as a statutory claim for purposes of statutory liquidated damages and attorneys fees. Dodd v. Dyke Indus., 2008 U.S. Dist. LEXIS 34786 (W.D. Ky. Apr. 25, 2008).

Employee was not entitled to liquidated damages for an employer's failure to pay overtime because the employer acted in good faith by giving the employee extra work to assist the employee and not to thwart underlying public policy. Starr v. Louisville Graphite, Inc., 2016 Ky. App. LEXIS 58 (Ky. Ct. App. Apr. 22, 2016).

Ky. Rev. Stat. Ann. § 337.385 (2) language “such action may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself, herself, or themselves” is plain and unambiguous; it indicates that apart from any future penalty enforcement proceedings from the Cabinet, a private cause of action lies in circuit court for recovery of Ky. Rev. Stat. Ann. § 337.385 damages. Vogt Power Int'l, Inc. v. Labor Dep't of Workplace Stds., 588 S.W.3d 169, 2019 Ky. App. LEXIS 186 (Ky. Ct. App. 2019).

4. Type of Employee.

A medical director of a medical health plan was not excepted from recovery under this section because he was “employed in a bona fide executive, administrative, supervisory or professional capacity,” under subdivision (2) of KRS 337.010 because the context “required otherwise;” it is just as unlawful to fail to pay or to withhold a part of the salary of an executive, administrative, supervisory or professional employee as it would be to do so in the case of any other type of employee. Healthcare of Louisville v. Kiesel, 715 S.W.2d 246, 1986 Ky. App. LEXIS 1214 (Ky. Ct. App. 1986).

Defendant was entitled to partial summary judgment on plaintiffs’ claims for overtime wages under the Fair Labor Standards Act, 29 U.S.C.S. § 207, and the Kentucky Wages and Hours Act (KWHA), KRS 337.285(1), because plaintiffs were employed in a “bona fide administrative capacity,” and fell within the overtime wage exemption of 29 U.S.C.S. § 213(a)(1), and outside of the scope of “employee” under KRS 337.010(2)(a)(2). Because it appeared that the protections of KRS 337.385(1) and 337.055 might not apply to plaintiffs because they fell outside of the scope of “employee” as defined in the KWHA, the court reserved ruling on plaintiffs’ claims for unpaid wages and liquidated damages under KRS 337.385(1) and 337.055 and requested briefing on the issue. Fox v. Lovas, 2012 U.S. Dist. LEXIS 27908 (W.D. Ky. Mar. 1, 2012).

5. Sovereign Immunity.

Where county employees alleged that the county violated the Fair Labor Standards Act, 29 USCS § 201 et seq., and the Kentucky Wages and Hours Act, KRS ch. 337, their state law claims were barred by sovereign immunity, which was not waived by provisions in KRS 337.285 , 337.385 . Crawford v. Lexington-Fayette Urban County Gov't, 2007 U.S. Dist. LEXIS 2567 (E.D. Ky. Jan. 9, 2007).

6. Class Actions.

Trial court erred in dismissing a server’s class action against a corporation seeking damages and attorney’s fees pursuant to KRS 337.385 , as the server did not waive his right to pursue the cause of action by accepting a settlement for tips improperly withheld by a restaurant under KRS 337.065 in an earlier administrative action, since the release signed by the server applied only to the withheld tips. Singleton v. Bravo Dev., Inc., 2007 Ky. App. LEXIS 352 (Ky. Ct. App.), sub. op., 2007 Ky. App. Unpub. LEXIS 509 (Ky. Ct. App. Sept. 21, 2007).

In an employee’s complaint seeking compensation for off-the-clock work under KRS 337.385 and for a denial of meal and rest breaks in violation of KRS 337.355 and 337.365 , he failed as a matter of law to carry his burden of establishing that class action claims predominated and that the institution of a class action would be a superior and more efficient means by which to resolve the parties’ wage and hour dispute under Fed. R. Civ. P. 23(b)(3). In a class action, the court would be left with a series of mini-trials on questions of both liability and damages involving if not hundreds, at a minimum, dozens of plaintiff employees who would rightfully be required to come forward and prove that they were required by their manager(s) to work off-the-clock and/or were denied lunch and rest breaks, when such events did occur, the duration of such events, and their resulting losses, both monetary and non-monetary. England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

Trial court properly denied an employee's motion to certify a class action for unpaid overtime because, while the statute at issue permitted actions by one or more employees, it did not permit actions to be brought on behalf of employees who were similarly situated, and the civil procedure rule for class certification could not override the statute's limitation on who could bring claims for unpaid wages where the limitation was contained in a substantive statute and was intertwined with the statute's rights and remedies. McCann v. Sullivan Univ. Sys., 2015 Ky. App. LEXIS 31 (Ky. Ct. App.), sub. op., 2015 Ky. App. Unpub. LEXIS 862 (Ky. Ct. App. Feb. 27, 2015).

Ky. Rev. Stat. Ann. § 337.385 prohibited suits in a representative capacity, and this prohibition was so intertwined with the Kentucky Wage and Hour Act's rights and remedies that allowing certification under Fed. R. Civ. P. 23 would violate the Rules Enabling Act. Green v. Platinum Rests. Mid-America LLC, 2015 U.S. Dist. LEXIS 171647 (W.D. Ky. Feb. 24, 2015).

State court decision that the Kentucky Wage and Hour Act could not support class-action claims did not require decertification of a class after a settlement agreement had been reached, as it was not shown that any of the class certification requirements were affected or that the Rules Enabling Act required decertification; the fairness requirement of Fed. R. Civ. P. 23 did not bar enforcement of the settlement after a post-settlement change in substantive law. Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084, 2016 FED App. 5086P, 2016 U.S. App. LEXIS 22218 (6th Cir. Ky. 2016 ).

Employees could not assert a representative action against employers for violations of the Kentucky Wage and Hour Act because it was predicted that Kentucky courts would so hold. Williams v. King Bee Delivery, LLC, 199 F. Supp. 3d 1175, 2016 U.S. Dist. LEXIS 104001 (E.D. Ky. 2016 ).

7. De Minimis.

Employee’s claim for off-the-clock work under KRS 337.385 was not a de minimis one because the district court hesitated to judicially draft a ten-minute de minimis rule into the Kentucky Wages and Hours Act. The employer did not extinguish the claim by tendering solely the wages sought without consideration of any of the other potential forms of recovery under the Kentucky Wages and Hours Act, such as liquidated damages, attorney’s fees and cost. England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

8. Preemption.

Employees’ claims that their employer paid them amounts less than the wages and overtime compensation they were entitled to were preempted by 26 U.S.C.S. § 7422 because the claims were actually an attempt to recover excessive Federal Insurance Contribution Act taxes that had been withheld from their paychecks, making their suit a tax refund suit. Berera v. Mesa Med. Group, LLC, 985 F. Supp. 2d 836, 2013 U.S. Dist. LEXIS 171989 (E.D. Ky. 2013 ), dismissed, 2014 U.S. Dist. LEXIS 393 (E.D. Ky. Jan. 3, 2014), modified, aff'd, 779 F.3d 352, 2015 U.S. App. LEXIS 2581 (6th Cir. Ky. 2015 ).

9. Attorney Fees.

When an employer was found to have failed to pay an employee overtime, a trial court's award of attorney fees had to be reconsidered because the trial court did not find a lodestar figure and incorrectly reduced the fee based on the employer's good faith, which was not a reason to reduce a fee award. Starr v. Louisville Graphite, Inc., 2016 Ky. App. LEXIS 58 (Ky. Ct. App. Apr. 22, 2016).

Circuit court properly awarded a reduced amount of attorney fees to an employee rather than the amount requested because it focused on the employee's wage-and-hour counterclaim and not on the time for defending the employer's breach of contract claim, used the lodestar approach to evaluate whether the requested rate was reasonable in relation to the claim, the claim's novelty and difficulty, and the number of the hours to be attributed strictly to that claim, developed a blended rate where it could not attribute where the hours of each attorney was spent in relationship to the different parts of the case, and the amount awarded was sufficient to allow access to court for enforcement of timely payment of the employee's wages. Hunt v. N. Am. Stainless, 482 S.W.3d 796, 2016 Ky. App. LEXIS 9 (Ky. Ct. App. 2016).

Cited:

McMichael v. Falls City Towing Co., 199 F. Supp. 2d 632, 2002 U.S. Dist. LEXIS 8170 (W.D. Ky. 2002 ).

Notes to Unpublished Decisions

Analysis

  1. Type of Employee.

4. Type of Employee.

1. Type of Employee.

Unpublished decision: In a given case, an otherwise exempt employee can recover under KRS 337.385 notwithstanding the limitations stated in KRS 337.010 if the context requires otherwise, but there was no evidence of a unique context that warranted an exception from the statutory provisions in the case of a professional electrical engineer who, in performing his tasks as a corporate quality manager, used his engineering skills, his analytic skills and considerable independent judgment to succeed in his work. He supervised others and made employment decisions. Whitewood v. Robert Bosch Tool Corp., 323 Fed. Appx. 397, 2009 FED App. 0227N, 2009 U.S. App. LEXIS 6227 (6th Cir. Ky. 2009 ).

4. Type of Employee.

Unpublished decision: On an employee's claim that his employer violated this statute when it failed to pay him severance and benefits, the employee did not identify context and equities of his particular case which would overcome § 337.010 's exclusion of individuals employed in a bona fide executive, administrative, supervisory, or professional capacity. Because the employee failed to show that the “context required otherwise,” the district court did not err in granting the employer summary judgment on this claim. Hackney v. Lincoln Nat'l Fire Ins. Co., 657 Fed. Appx. 563, 2016 FED App. 0592N, 2016 U.S. App. LEXIS 19989 (6th Cir. Ky. 2016 ).

Opinions of Attorney General.

A county official who works employees over a 40 hour week where said employees are paid a monthly salary can be held liable for paying the overtime rate and liquidated damages where applicable. The county would be the employer where a county employee is involved or where an employee’s salary, even though he is a deputy of a constitutional officer, is funded out of the county treasury; thus, the “employer” liability will follow the usual source of funding of the affected employee’s compensation. OAG 77-504 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

337.390. Time book to be kept by employers of females. [Repealed.]

Compiler’s Notes.

This section (4866b-5) was repealed by Acts 1974, ch. 391, § 14.

337.395. Effect on existing standards.

Any standards relating to minimum wages, maximum hours, overtime compensation, or other working conditions, in effect under any other law of this state which are more favorable to employees than standards applicable hereunder shall not be deemed to be amended, rescinded or otherwise affected by KRS 337.275 to 337.325 , 337.345 , and 337.385 to 337.405 but shall continue in full force and effect until they are specifically superseded by standards more favorable to such employees by operation of or in accordance with KRS 337.275 to 337.325 , 337.345 , and 337.385 to 337.405 or regulations issued thereunder.

History. Enact. Acts 1974, ch. 391, § 10.

NOTES TO DECISIONS

1. Generally.

United States District Court for the Western District of Kentucky refused to enforce former KRS 337.380 (repealed 1974) under KRS 337.395 where the 1974 Wage and Hour Act expressly repealed, not amended or rescinded, the female maximum hour law, if the court continued to enforce a statute that the General Assembly explicitly repealed, the court would have effectively undermined legislative intent and invaded constitutionally prescribed boundaries between the judicial and legislative branches of the government, and the statute limiting female work hours was outdated, discriminatory on its face and likely a violation of the Equal Protection Clauses of both the United States Constitution and the Kentucky Constitution. Barker v. Family Dollar, Inc., 2012 U.S. Dist. LEXIS 153331 (W.D. Ky. Oct. 25, 2012).

337.400. Employers of females to post law and notice of hours of work. [Repealed.]

Compiler’s Notes.

This section (4866b-6) was repealed by Acts 1974, ch. 391, § 14.

337.405. Effect on bargaining rights.

Nothing in KRS 337.275 to 337.325 , 337.345 , and 337.385 to 337.405 shall be deemed to interfere with, impede, or in any way diminish the right of employees to bargain collectively through representatives of their own choosing in order to establish wages in excess of the applicable minimum or to establish hours of work shorter than the applicable minimum under KRS 337.275 and 337.285 .

History. Enact. Acts 1974, ch. 391, § 11.

337.410. Department to enforce law. [Repealed.]

Compiler’s Notes.

This section (1599c-16) was repealed by Acts 1974, ch. 391, § 14.

Court-Ordered Appearance

337.415. Court-ordered appearance by employee not grounds for dismissal by employer — Penalty for unlawful discharge.

No employer shall discharge an employee for taking time off, as required by law, to appear in any duly constituted local, state or federal court or duly constituted administrative tribunal or hearing if such employee, prior to taking such time off, gives notice to the employer that he is required to serve by presenting a copy of the court or administrative certificate to said employer. The penalty for such unlawful discharge may include, but is not limited to, reemployment, assessment of court costs, appropriate attorney fees, and back pay as ordered by a court of competent jurisdiction.

History. Enact. Acts 1980, ch. 190, § 1, effective July 15, 1980.

Wage Discrimination Because of Sex

337.420. Definitions.

  1. “Employee” means any individual employed by any employer, including but not limited to individuals employed by the state or any of its political subdivisions, instrumentalities, or instrumentalities of political subdivisions.
  2. “Employer” means a person who has two (2) or more employees within the state in each of twenty (20) or more calendar weeks in the current or preceding calendar year and an agent of such a person.
  3. “Wage rate” means all compensation for employment, including payment in kind and amounts paid by employers for employee benefits, as defined by the commissioner in regulations issued under KRS 337.420 to 337.433 and 337.990(11).
  4. “Employ” includes to suffer or permit to work.
  5. “Occupation” includes any industry, trade, business, or branch thereof, or any employment or class of employment.
  6. “Commissioner” means the commissioner of the Department of Workplace Standards under the direction and supervision of the secretary of the Labor Cabinet.
  7. “Person” includes one (1) or more individuals, partnerships, corporations, legal representatives, trustees, trustees in bankruptcy, or voluntary associations.

History. Enact. Acts 1966, ch. 114, § 1; 1980, ch. 230, § 1, effective July 15, 1980; 1984, ch. 414, § 13, effective July 13, 1984; 1990, ch. 42, § 5, effective July 13, 1990; 2010, ch. 24, § 1736, effective July 15, 2010; 2017 ch. 3, § 7, effective January 9, 2017.

NOTES TO DECISIONS

Debtor’s countercomplaint against her former employer failed to state a claim that the employer had violated the Kentucky Equal Pay Law because there were no facts pled as to when, where, why, or how the employer discriminated in its payment of wages and compensation to the debtor. Credit Bureau Systems, Inc. v. Elam (In re Elam), 2019 Bankr. LEXIS 3220 (Bankr. E.D. Tenn. Oct. 10, 2019).

337.423. Discrimination prohibited.

  1. No employer shall discriminate between employees in the same establishment on the basis of sex, by paying wages to any employee in any occupation in this state at a rate less than the rate at which he or she pays any employee of the opposite sex for comparable work on jobs which have comparable requirements relating to skill, effort and responsibility. Differentials which are paid pursuant to established seniority systems or merit increase systems, which do not discriminate on the basis of sex, shall not be included within this prohibition. Nothing in KRS 337.420 to 337.433 and 337.990(11) shall apply to any employer who is subject to the federal Fair Labor Standards Act of 1938, as amended, when that act imposes comparable or greater requirements than contained in KRS 337.420 to 337.433 and 337.990(11) and when the employer files with the commissioner of the Department of Workplace Standards a statement that the employer is covered by the federal Fair Labor Standards Act of 1938, as amended.
  2. An employer who is paying a wage differential in violation of KRS 337.420 to 337.433 and 337.990(11) shall not, in order to comply with it, reduce the wage rates of any employee.
  3. No person shall cause or attempt to cause an employer to discriminate against any employee in violation of KRS 337.420 to 337.433 and 337.990(11).
  4. No employer may discharge or discriminate against any employee by reason of any action taken by such employee to invoke or assist in any manner the enforcement of KRS 337.420 to 337.433 and 337.990(11).

History. Enact. Acts 1966, ch. 114, § 2; 1984, ch. 414, § 14, effective July 13, 1984; 1990, ch. 42, § 6, effective July 13, 1990; 2010, ch. 24, § 1737, effective July 15, 2010; 2017 ch. 3, § 8, effective January 9, 2017.

Compiler’s Notes.

The Fair Labor Standards Act of 1938, referred to in subsection (1), is compiled as 29 USCS § 201 et seq.

NOTES TO DECISIONS

  1. Evidence.
  2. Filing Cause of Action.
1. Evidence.

Employer’s motion for summary judgment against an employee’s claims for damages for alleged violations of KRS 344.040 and KRS 337.423 was properly granted, as: (1) there was not sufficient prima facie evidence to support the constructive discharge, gender discrimination, and retaliation claims; (2) an equal pay claim was time-barred; and (3) a sexual orientation claim was filed in the wrong forum, since the county human rights commission had jurisdiction over that claim. Crockett v. CHA HMO, Inc., 2008 Ky. App. LEXIS 103 (Ky. Ct. App. Apr. 4, 2008), review denied, ordered not published, 2009 Ky. LEXIS 262 (Ky. May 13, 2009).

2. Filing Cause of Action.

Under KRS 337.423 , a cause of action cannot occur after the final date of employment, when an employee stops accruing wages. Crockett v. CHA HMO, Inc., 2008 Ky. App. LEXIS 103 (Ky. Ct. App. Apr. 4, 2008), review denied, ordered not published, 2009 Ky. LEXIS 262 (Ky. May 13, 2009).

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Work and Labor Provisions Under KRS 337, § 280.00.

ALR

Application of state law to sex discrimination in employment. 87 A.L.R.3d 93.

Construction and application of provisions of Equal Pay Act of 1963 (29 USCS § 206(d)) prohibiting wage discrimination on basis of sex. 7 A.L.R. Fed. 707.

Comparable worth as applied to sex wage claims. 62 A.L.R. Fed. 707.

337.425. Powers of commissioner.

  1. For this purpose, the commissioner, or the commissioner’s authorized representative, may enter the place of employment of any employer to inspect and copy payrolls and other employment records, to compare character of work and operations on which persons employed by him or her are engaged, to question such persons, and to obtain other information necessary to the administration and enforcement of KRS 337.420 to 337.433 and 337.990(11).
  2. The commissioner or the commissioner’s authorized representative may examine witnesses under oath, and require by subpoena the attendance and testimony of witnesses and the production of any documentary evidence relating to the subject matter of any investigation undertaken pursuant to KRS 337.420 to 337.433 and 337.990(11).If a person fails to attend, testify or produce documents under or in response to a subpoena, the Circuit Court in the judicial circuit where the hearing is being held, on application of the commissioner or the commissioner’s representative, may issue an order requiring the person to appear before the commissioner or the commissioner’s authorized representative, or to produce documentary evidence, and any failure to obey the order of the court may be punished by the court as contempt.
  3. The commissioner may endeavor to eliminate pay practices unlawful under KRS 337.420 to 337.433 and 337.990(11) by informal methods of conference, conciliation and persuasion, and supervise the payment of wages owing to any employee under KRS 337.420 to 337.433 and 337.990(11).
  4. The commissioner may issue regulations not inconsistent with the purpose of KRS 337.420 to 337.433 and 337.990(11), necessary or appropriate to carry out its provisions.

History. Enact. Acts 1966, ch. 114, § 3; 1976, ch. 62, § 119; 1990, ch. 42, § 7, effective July 13, 1990; 2010, ch. 24, § 1738, effective July 15, 2010; 2017 ch. 3, § 9, effective January 9, 2017.

NOTES TO DECISIONS

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973).

337.427. Collection of unpaid wages and other relief.

  1. Any employer who violates the provisions of KRS 337.423 shall be liable to the employee or employees affected in the amount of their unpaid wages, and in instances of willful violation in employee suits under subsection (2) of this section, up to an additional equal amount as liquidated damages.
  2. Action to recover the liability may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves and other employees similarly situated. The court in the action shall, in cases of violation in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.
  3. An agreement by any employee to work for less than the wage to which the employee is entitled under KRS 337.420 to 337.433 and 337.990(11) shall not be a bar to any such action, or to a voluntary wage restitution of the full amount due under KRS 337.420 to 337.433 and 337.990(11).
  4. At the written request of any employee claiming to have been paid less than the wage to which he may be entitled under KRS 337.420 to 337.433 and 337.990(11) , the commissioner may bring any legal action necessary in behalf of the employee to collect the claim for unpaid wages. The commissioner shall not be required to pay the filing fee, or other costs, in connection with the action. The commissioner shall have power to join various claims against the employer in one (1) cause of action.
  5. In proceedings under this section, the court may order other affirmative action as appropriate, including reinstatement of employees discharged in violation of KRS 337.420 to 337.433 and 337.990(11).
  6. The commissioner may on his or her own motion petition any court of competent jurisdiction to restrain violations of KRS 337.423 , and petition for such affirmative relief as the court may deem appropriate, including restoration of unpaid wages and reinstatement of employees, consistent with the purpose of KRS 337.420 to 337.433 and 337.990(11).

History. Enact. Acts 1966, ch. 114, § 4; 1990, ch. 42, § 8, effective July 13, 1990; 2010, ch. 24, § 1739, effective July 15, 2010; 2017 ch. 3, § 10, effective January 9, 2017.

NOTES TO DECISIONS

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973).

337.430. Statute of limitations.

Court action under KRS 337.420 to 337.433 and 337.990(11) may be commenced no later than six (6) months after the cause of action occurs.

History. Enact. Acts 1966, ch. 114, § 5; 1990, ch. 42, § 9, effective July 13, 1990; 2017 ch. 3, § 11, effective January 9, 2017.

NOTES TO DECISIONS

1. Filing Cause of Action.

Under KRS 337.423 , a cause of action cannot occur after the final date of employment, when an employee stops accruing wages. Crockett v. CHA HMO, Inc., 2008 Ky. App. LEXIS 103 (Ky. Ct. App. Apr. 4, 2008), review denied, ordered not published, 2009 Ky. LEXIS 262 (Ky. May 13, 2009).

337.433. Posting of law.

Every person subject to KRS 337.420 to 337.433 and 337.990(11) shall keep an abstract or copy of KRS 337.420 to 337.433 and 337.990(11) posted in a conspicuous place in or about the premises where any employee is employed. Employers shall be furnished copies or abstracts of KRS 337.420 to 337.433 and 337.990(11) by the state on request without charge.

History. Enact. Acts 1966, ch. 114, § 7; 1990, ch. 42, § 10, effective July 13, 1990; 2017 ch. 3, § 12, effective January 9, 2017.

Public Works

337.505. Definition of “prevailing wage” — Fringe benefits included. [Repealed]

History. Enact. Acts 1962, ch. 173, § 1; 1968, ch. 33, § 1; 1970, ch. 33, § 2; 1974, ch. 341, § 2; 1982, ch. 54, § 2, effective July 15, 1982; 2010, ch. 24, § 1740, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 173, § 1; 1968, ch. 33, § 1; 1970, ch. 33, § 2; 1974, ch. 341, § 2; 1982, ch. 54, sec. 2, effective July 15, 1982; 2010, ch. 24, sec. 1740, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.510. Public authority’s duties as to inclusion of prevailing wage in proposals and contracts. [Repealed]

History. 2290c-2: amend. Acts 1960, ch. 56, § 1; 1970, ch. 33, § 3; 1974, ch. 341, § 3; 2010, ch. 24, § 1741, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Recodified 1942 Ky. Acts ch. 208, § 1, effective October 1, 1942, from Ky. Stat. § 2290c-2; 1960, ch. 56, § 1, effective June 16, 1960; 1970, ch. 33, § 3; 1974 Ky. Acts ch. 341, § 3; 2010 Ky. Acts ch. 24, § 1741, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.512. Duties of individual officers with respect to prevailing wage law. [Repealed]

History. Enact. Acts 1970, ch. 33, § 4; 1974, ch. 341, § 4; 2010, ch. 24, § 1742, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 33, § 4; 1974, ch. 341, § 4; 2010, ch. 24, § 1742, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.515. Application of KRS 337.510 to 337.550. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 173, § 3; 1970, ch. 33, § 5) was repealed by Acts 1974, ch. 341, § 10.

337.520. Determination of prevailing wages — Administrative regulations — Filing wage contract. [Repealed]

History. 2290c-3: amend. Acts 1960, ch. 56, § 2; 1962, ch. 173, § 2(1) to (4); 1968, ch. 33, § 2; 1970, ch. 33, § 6; 1974, ch. 341, § 5; 1982, ch. 54, § 3, effective July 15, 1982; 1996, ch. 48, § 2, effective July 15, 1996; 2010, ch. 24, § 1743, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Recodified 1942 Ky. Acts ch. 208, § 1, effective October 1, 1942, from Ky. Stat. § 2290c-3; 1962, ch. 173, § 2(1) to (4); 1968, ch. 33, § 2; 1970, ch. 33, § 6; 1974, ch. 341, § 5; 1982, ch. 54, § 3, effective July 15, 1982; 1996, ch. 48, § 2, effective July 15, 1996; 2010, ch. 24, § 1743, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.522. Hearings — Publication of determination — Revisions — Prevailing wage review boards attached to Labor Cabinet for administrative purposes. [Repealed]

History. Enact. Acts 1962, ch. 173, § 2(5) to (7); 1972, ch. 275, § 1; 1974, ch. 341, § 6; 1984, ch. 414, § 15, effective July 13, 1984; 1996, ch. 48, § 3, effective July 15, 1996; 2010, ch. 24, § 1744, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 173, § 2(5) to (7); 1972, ch. 275, § 1; 1974, ch. 341, § 6; 1984, ch. 414, § 15, effective July 13, 1984; 1996, ch. 48, § 3, effective July 15, 1996; 2010, ch. 24, § 1744, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.524. Which rates to apply while review is pending. [Repealed]

History. Enact. Acts 1970, ch. 33, § 12; 2010, ch. 24, § 1745, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 33, § 12; 2010, ch. 24, § 1745, effective July 15, 2010), was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.525. Judicial review. [Repealed]

History. Enact. Acts 1962, ch. 173, § 5; 1970, ch. 33, § 7; 1984, ch. 414, § 16, effective July 13, 1984; 2010, ch. 24, § 1746, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 173, § 5; 1970, ch. 33, § 7; 1984, ch. 414, § 16, effective July 13, 1984; 2010, ch. 24, § 1746, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.530. Contractor to pay prevailing wages and post rates — Payroll records — On-site inspections. [Repealed]

History. 2290c-4: amend. Acts 1960, ch. 56, § 3; 1962, ch. 173, § 4; 1970, ch. 33, § 8; 1974, ch. 341, § 7; 1982, ch. 54, § 4, effective July 15, 1982; 2010, ch. 24, § 1747, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (2290c-4: amend. Acts 1960, ch. 56, § 3; 1962, ch. 173, § 4; 1970, ch. 33, § 8; 1974, ch. 341, § 7; 1982, ch. 54, § 4, effective July 15, 1982; 2010, ch. 24, § 1747, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.540. Limitation of working hours — Exceptions — Overtime. [Repealed]

History. 2290c-5: amend. Acts 1968, ch. 33, § 3; 1974, ch. 341, § 8; 1994, ch. 258, § 1, effective July 15, 1994; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (2290c-5: amend. Acts 1968, ch. 33, § 3; 1974, ch. 341, § 8; 1994, ch. 258, § 1, effective July 15, 1994) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.545. Suspension of application of KRS 337.540 during national emergency. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 136, §§ 1, 3) was repealed by Acts 1950, ch. 176, § 1.

337.548. Injunction of violation of prevailing wage law. [Repealed]

History. Enact. Acts 1970, ch. 33, § 9; 2010, ch. 24, § 1748, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 33, § 9; 2010, ch. 24, § 1748, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

337.550. Department to aid in enforcement — Remedies of laborer. [Repealed]

History. 2290c-6: amend. Acts 1970, ch. 33, § 10; 1974, ch. 341, § 9; 1978, ch. 340, § 5, effective June 17, 1978; 2010, ch. 24, § 1749, effective July 15, 2010; repealed by 2017 ch. 3, § 14, effective January 9, 2017.

Compiler’s Notes.

This section (2290c-6: amend. Acts 1970, ch. 33, § 10; 1974, ch. 341,§ 9; 1978, ch. 340, § 5, effective June 17, 1978; 2010, ch. 24, § 1749, effective July 15, 2010) was repealed by Acts 2017, ch. 3, § 14, effective January 9, 2017.

Penalties

337.990. Penalties.

The following civil penalties shall be imposed, in accordance with the provisions in KRS 336.985 , for violations of the provisions of this chapter:

  1. Any firm, individual, partnership, or corporation that violates KRS 337.020 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense. Each failure to pay an employee the wages when due him under KRS 337.020 shall constitute a separate offense.
  2. Any employer who violates KRS 337.050 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000).
  3. Any employer who violates KRS 337.055 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense and shall make full payment to the employee by reason of the violation. Each failure to pay an employee the wages as required by KRS 337.055 shall constitute a separate offense.
  4. Any employer who violates KRS 337.060 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) and shall also be liable to the affected employee for the amount withheld, plus interest at the rate of ten percent (10%) per annum.
  5. Any employer who violates the provisions of KRS 337.065 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense and shall make full payment to the employee by reason of the violation.
  6. Any person who fails to comply with KRS 337.070 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense and each day that the failure continues shall be deemed a separate offense.
  7. Any employer who violates any provision of KRS 337.275 to 337.325 , KRS 337.345 , and KRS 337.385 to 337.405 , or willfully hinders or delays the commissioner or the commissioner’s authorized representative in the performance of his or her duties under KRS 337.295 , or fails to keep and preserve any records as required under KRS 337.320 and 337.325 , or falsifies any record, or refuses to make any record or transcription thereof accessible to the commissioner or the commissioner’s authorized representative shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000). A civil penalty of not less than one thousand dollars ($1,000) shall be assessed for any subsequent violation of KRS 337.285(4) to (9) and each day the employer violates KRS 337.285(4) to (9) shall constitute a separate offense and penalty.
  8. Any employer who pays or agrees to pay wages at a rate less than the rate applicable under KRS 337.275 and 337.285 , or any wage order issued pursuant thereto shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000).
  9. Any employer who discharges or in any other manner discriminates against any employee because the employee has made any complaint to his or her employer, to the commissioner, or to the commissioner’s authorized representative that he or she has not been paid wages in accordance with KRS 337.275 and 337.285 or regulations issued thereunder, or because the employee has caused to be instituted or is about to cause to be instituted any proceeding under or related to KRS 337.385 , or because the employee has testified or is about to testify in any such proceeding, shall be deemed in violation of KRS 337.275 to 337.325 , KRS 337.345 , and KRS 337.385 to 337.405 and shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000).
  10. Any employer who violates KRS 337.365 shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000).
  11. A person shall be assessed a civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) when that person discharges or in any other manner discriminates against an employee because the employee has:
    1. Made any complaint to his or her employer, the commissioner, or any other person; or
    2. Instituted, or caused to be instituted, any proceeding under or related to KRS 337.420 to 337.433 ; or
    3. Testified, or is about to testify, in any such proceedings.

History. 576a-2, 1350, 1599c-19, 1599c-20, 2290c-4, 2290c-7, 4767a-16, 4866b-7: amend. Acts 1944, ch. 63, § 2; 1960, ch. 56, § 4, effective June 16, 1960; 1970, ch. 33, § 11; 1974, ch. 391, § 13; 1976, ch. 222, § 2; 1980, ch. 188, § 262, effective July 15, 1980; 1990, ch. 42, § 3, effective July 13, 1990; 2002, ch. 329, § 2, effective July 15, 2002; 2004, ch. 122, § 2, effective July 13, 2004; 2010, ch. 24, § 1750, effective July 15, 2010; 2017 ch. 3, § 6, effective January 9, 2017.

Legislative Research Commission Note.

(10/23/90). Through an apparent clerical or typographical error, the reference to KRS 337.505 to 337.550 in the first sentence of what is now subsection (13) of this statute was transformed into “KRS 337.505 or 337.550 .” Compare 1970 Ky. Acts ch. 33, sec. 11, with 1974 Ky. Acts ch. 391, sec. 13. Pursuant to KRS 7.136(1), 446.270 , and 446.280 . The prior wording has been restored.

NOTES TO DECISIONS

  1. Employee's right of action.
  2. Wages wrongfully withheld.
1. Employee's right of action.

Employee could assert a retaliatory termination claim for being discharged for complaining the employee was unlawfully denied overtime pay because (1) the employee was among the class of persons protected by the Kentucky Wage and Hour Act, and (2) Ky. Rev. Stat. Ann. § 337.990(9) did not provide the employee with a civil remedy. Williams v. King Bee Delivery, LLC, 199 F. Supp. 3d 1175, 2016 U.S. Dist. LEXIS 104001 (E.D. Ky. 2016 ).

2. Wages wrongfully withheld.

Circuit court correctly determined there was no basis for setting aside the Cabinet’s order that the employer wrongfully withheld wages belonging to a former employee where the employer had no policy beyond the requirement of submitting a timesheet that required the employee to prove the number of hours he worked while out of the office, the employee verified the timesheets’ accuracy, the employer approved them, and they showed the employee was owed outstanding wages representing 58 hours of annual leave. Vogt Power Int'l, Inc. v. Labor Dep't of Workplace Stds., 588 S.W.3d 169, 2019 Ky. App. LEXIS 186 (Ky. Ct. App. 2019).

Cited:

Barker v. Stearns Coal & Lumber Co., 287 Ky. 340 , 152 S.W.2d 953, 1941 Ky. LEXIS 534 ( Ky. 1941 ); Hardin Memorial Hospital, Inc. v. Land, 645 S.W.2d 711, 1983 Ky. App. LEXIS 277 (Ky. Ct. App. 1983).

Opinions of Attorney General.

It was the clear intent of the legislature under KRS 337.020 to require firms, individuals, and partnerships as well as corporations to pay employees at least as frequently as semimonthly and, under subsection (1) of this section, to penalize those who fail to comply. OAG 70-830 .

Where the primary factor in the failure to pay pursuant to the prevailing wage rate provisions for a public works project was the fiscal court’s failure to observe the mandatory requirements of KRS 337.510 and 337.512 in that the fiscal court failed to obtain the prevailing wage rate schedules and to incorporate them into the bid specifications and the contract, the fiscal court was not only responsible for making sufficient payments to the contractors and their employees to comply with the applicable prevailing wage provisions, but the fiscal court and its members faced a potential liability for damages, injury or loss sustained by any person as a result of their negligence in failing to comply with the requirements of KRS 337.505 to 337.550 . OAG 80-547 .

337.991. Penalty. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 36, § 2) was repealed by Acts 1990, ch. 42, § 11.

337.992. Penalties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 114, § 8) was repealed by Acts 1990, ch. 42, § 11.

337.993. Penalties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 275, § 2; 1984, ch. 223, § 2) was repealed by Acts 1990, ch. 42, § 11.

337.994. Penalty for violating KRS 337.200.

Any employer who violates KRS 337.200 shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500). Each day that the employer violates KRS 337.200 shall constitute a separate offense and penalty. If the employer is a corporation, the officers of the corporation shall be personally liable for the penalty imposed herein.

History. Enact. Acts 1990, ch. 104, § 1, effective July 13, 1990.

CHAPTER 338 Occupational Safety and Health of Employees

338.010. Definitions and applicability. [Repealed.]

Compiler’s Notes.

This section (1599c-4, 1599c-22, 1599c-27, 1599c-39: amend. Acts 1958, ch. 132, § 1) was repealed by Acts 1972, ch. 251, § 22.

Legislative Research Commission Note.

This section was repealed by Acts 1972, ch. 251, § 22, and amended by Acts 1972, ch. 326, § 1. The total purpose of the two acts appears to be served by repeal of this section and replacement with KRS 338.015 , and the acts have been compiled accordingly.

338.011. Statement of purpose and policy.

The General Assembly finds that occupational accidents and diseases produce personal injuries and illness including loss of life as well as economic loss. Therefore, the General Assembly declares that it is the purpose and policy of the Commonwealth of Kentucky to promote the safety, health and general welfare of its people by preventing any detriment to the safety and health of all employees, both public and private, covered by this chapter, arising out of exposure to harmful conditions and practices at places of work and otherwise to preserve our human resources by providing for education and training, inspection of workplaces, consultation, services, research, reports and statistics, and other means of furthering progress in the field of occupational safety and health.

History. Enact. Acts 1972, ch. 251, § 1.

NOTES TO DECISIONS

  1. Applicability.
  2. Legislative Intent.
  3. Penalties.
  4. Citation Not Void
  5. Abatement Requirements.
1. Applicability.

Although the accident was an event which the Kentucky Occupational Safety and Health Act (KOSHA) administrative regulation was designed to prevent, logger who made profit from purchasing standing timber from property owners and then cutting and selling the logs to timber mills such as the one where accident occurred, was not an employee of the timber mill, and thus was not in the class of persons the KOSHA regulation was designed to protect, as such the negligence per se standard did not apply. Carman v. Dunaway Timber Co., 949 S.W.2d 569, 1997 Ky. LEXIS 27 ( Ky. 1997 ).

Handyman’s negligence per se claim failed as a matter of law because a limited liability company (LLC) had no duty to comply with the Kentucky Occupational Safety and Health Act; the handyman was an independent contractor, rather than an employee of the LLC, and was performing specialized work unrelated to the normal operations of the LLC’s property rental business, and thus, the responsibility for complying with safety laws applicable to that specialized work was upon the handyman. Auslander Props., LLC v. Nalley, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

2. Legislative Intent.

Because the authority to impose penalties for violations of the KOSHA standards is placed in the Kentucky Occupational Safety and Health Commission, an administrative body, the General Assembly intended this chapter to impose civil rather than criminal penalties. Commonwealth v. Lawson Mardon Flexible Packaging, Inc., 10 S.W.3d 488, 1999 Ky. App. LEXIS 163 (Ky. Ct. App. 1999).

3. Penalties.

Because this chapter is properly regarded as a civil statute both in form and in application, the penalties imposed by it do not bring about Fifth Amendment protection from subsequent criminal prosecution. Commonwealth v. Lawson Mardon Flexible Packaging, Inc., 10 S.W.3d 488, 1999 Ky. App. LEXIS 163 (Ky. Ct. App. 1999).

4. Citation Not Void

Citation against a subcontractor working on a multi-employer work site under the Kentucky Occupational Safety and Health Act (KOSHA), KRS 338.011 et seq., was not void for a failure to comply with KRS 338.111 as the subcontractor did not show prejudice, was no longer on site when the inspection was conducted, and would have required advance notice, which would have defeated the purpose of KOSHA; the primary contractor was afforded the opportunity to attend the opening conference and walk around inspection. Dep't of Labor v. Hayes Drilling, Inc., 354 S.W.3d 131, 2011 Ky. App. LEXIS 146 (Ky. Ct. App. 2011).

5. Abatement Requirements.

It was the Kentucky Occupational Safety and Health Act’s, KRS 338.011 et seq., purpose to prevent the first accident and recurring accidents, and where a citation acknowledged that the alleged violation had been eliminated on April 19, 2005, and a subcontractor was informed that abatement was not an issue, the requirements of KRS 338.141 were met. Dep't of Labor v. Hayes Drilling, Inc., 354 S.W.3d 131, 2011 Ky. App. LEXIS 146 (Ky. Ct. App. 2011).

Opinions of Attorney General.

KRS Chapter 338, in not excluding the state or its subdivisions from its scope, has waived sovereign immunity for penalties against such entities. OAG 75-161 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Kentucky Occupational Safety and Health, § 286.00.

338.015. Definitions and applicability.

As used in this chapter:

  1. “Employer” shall mean any entity for whom a person is employed except those employers excluded in KRS 338.021 ;
  2. “Employee” shall mean any person employed except those employees excluded in KRS 338.021 ;
  3. The term “occupational safety and health standard” means a standard which requires conditions, or the adoption or use of one (1) or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment. “Standard” has the same meaning as and includes the words “regulation” and “rule”;
  4. “Occupational safety and health hazard” means any practice or condition in a place of employment which may be deemed detrimental to the safety and health of employees;
  5. “Occupational injury or illness” means any abnormal condition or disorder of an employee caused by exposure to factors associated with his or her employment;
  6. “Board” means the Kentucky Occupational Safety and Health Standards Board established under this chapter;
  7. “Commissioner” means the commissioner of the Department of Workplace Standards under the direction and supervision of the secretary of the Labor Cabinet;
  8. “Review commission” means the Kentucky Occupational Safety and Health Review Commission established under this chapter;
  9. The term “national consensus standard” means any occupational safety and health standard or modification thereof which has been adopted and promulgated by a nationally recognized standards-producing organization;
  10. The term “established federal standard” means any operative occupational safety and health standard established by any agency of the United States government;
  11. “Department” means the Department of Workplace Standards; and
  12. “Secretary” means the secretary of the Labor Cabinet.

History. Enact. Acts 1972, ch. 251, § 2; 1984, ch. 414, § 17, effective July 13, 1984; 2005, ch. 123, § 37, effective June 20, 2005; 2010, ch. 24, § 1751, effective July 15, 2010.

NOTES TO DECISIONS

1. Employee.

Employer-employee relationship is a familiar and well-established species of agency relationship, and it carries with it a wide range of specific legal obligations applicable in circumstances far beyond the Kentucky Occupational Safety and Health Act regulations; a member of a limited liability company (LLC) conducting business and performing work as an agent of the LLC does not automatically become an employee of the LLC. Auslander Props., LLC v. Nalley, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

Limited liability company (LLC) was not an employee for purposes of the Kentucky Occupational Safety and Health Act because nothing in the record suggested that the sole member of the LLC was an employee of his own LLC. Auslander Props., LLC v. Nalley, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

Handyman’s negligence per se claim failed as a matter of law because a limited liability company (LLC) had no duty to comply with the Kentucky Occupational Safety and Health Act; the handyman was an independent contractor, rather than an employee of the LLC, and was performing specialized work unrelated to the normal operations of the LLC’s property rental business, and thus, the responsibility for complying with safety laws applicable to that specialized work was upon the handyman. Auslander Props., LLC v. Nalley, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

Opinions of Attorney General.

The provisions of this section and of KRS 338.021 would apply to state and local governments and their respective employees. OAG 72-523 .

Both the history of the Kentucky occupational safety and health statutes and the requirements of the federal Occupational Safety and Health Act of 1970 authorizing a state to submit an approved plan indicate an intention to cover state, municipal, and other political subdivision employees under the state act, and civil penalties may be assessed against such entities. OAG 75-161 .

Where Kentucky Labor Cabinet receives complaints from employees who are faced with choice of driving defective and unsafe vehicles on public highways or being fired, the Labor Cabinet is not restricted in exercising jurisdiction to just “off the road” job site employees, since KRS 338.021 applies labor’s safety jurisdiction to all employers and employees in all places and an occupational safety and health hazard is, under this section, any detrimental practice or condition in a place of employment; however, the Labor Cabinet is not required to enforce standards under these sections, and may refrain from exercising that jurisdiction by agreement under KRS 15.610 with other enforcement agencies which exercise dual and overlapping jurisdictions; and the Labor Cabinet will lose any jurisdiction which it does retain at such time as the Bureau (now Department) of Vehicle Regulation and the Vehicle Equipment Safety Commission promulgate rules, regulations, or a code which supersede the statutes governing the Labor Cabinet jurisdiction. OAG 81-24 .

Research References and Practice Aids

Kentucky Bench & Bar.

Lester, Ensuring the Health Care Worker Can Perform the Essential Functions of Their Position in the Increasingly Restricted Legal Environment Governing Hiring and Disability Accommodation, Volume 75, No. 3, May 2011, Ky. Bench & Bar 10.

338.020. Industrial safety board. [Repealed.]

Compiler’s Notes.

This section (1599c-21: amend. Acts 1958, ch. 131, § 1) was repealed by Acts 1972, ch. 251, § 22.

338.021. Exclusions.

  1. This chapter applies to all employers, employees, and places of employment throughout the Commonwealth except the following:
    1. Employees of the United States government; and
    2. Employers, employees and places of employment over which federal agencies other than the Occupational Safety and Health Administration of the United States Department of Labor exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health.
    1. Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisee, neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purpose under this chapter. (2) (a) Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisee, neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purpose under this chapter.
    2. Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisor, neither a franchisor nor a franchisor’s employee shall be deemed to be an employee of the franchisee for any purpose under this chapter.
    3. For purposes of this subsection, “franchisee” and “franchisor” have the same meanings as in 16 C.F.R. sec. 436.1.
  2. Nothing in this chapter shall be construed to supersede or in any manner affect any workers’ compensation law or to enlarge or diminish or affect in any manner the common law or statutory rights, duties, or liabilities of employers or employees, under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of employment.

HISTORY: Enact. Acts 1972, ch. 251, § 3; 1982, ch. 378, § 1, effective July 15, 1982; 2017 ch. 24, § 2, effective June 29, 2017.

NOTES TO DECISIONS

  1. Purpose.
  2. Workers’ Compensation.
  3. Violation of Federal Regulation.
  4. Preemption.
1. Purpose.

The purpose of this section seems to be the preclusion of independent civil actions based on violations of the Kentucky Occupational Safety and Health Act. Childers v. International Harvester Co., 569 S.W.2d 675, 1977 Ky. App. LEXIS 927 (Ky. Ct. App. 1977).

2. Workers’ Compensation.

This statute does not preclude the assessment of the 15 percent penalty provided for in the workers’ compensation statute (KRS 342.165 ) for intentional failure of an employer to comply with safety statutes or regulations. Childers v. International Harvester Co., 569 S.W.2d 675, 1977 Ky. App. LEXIS 927 (Ky. Ct. App. 1977).

Subsection (2) of this section does not prohibit the assessment of a penalty under the Workers’ Compensation Act for a violation of a regulation promulgated under the Kentucky Occupational Safety and Health Act, KRS Chapter 338; this does not mean, however, that every violation by an employer of a regulation promulgated under statutory authority should result in an increase in the employer’s liability under the Workers’ Compensation Act since KRS 342.165 requires an “intentional failure of the employer to comply with any specific statute or lawful regulation made thereunder.” Barmet of Kentucky, Inc. v. Sallee, 605 S.W.2d 29, 1980 Ky. App. LEXIS 362 (Ky. Ct. App. 1980).

3. Violation of Federal Regulation.

A violation of a regulation promulgated under the federal Occupational Safety and Health Act does not give rise to an independent tort action by the employee against his employer. Stinnett v. Buchele, 598 S.W.2d 469, 1980 Ky. App. LEXIS 312 (Ky. Ct. App. 1980).

4. Preemption.

A claim by a pesticide worker that he was wrongfully discharged for complaints about unsafe work conditions were not preempted by federal law under KRS 338.221 where the worker was not engaged in agricultural work. Terminix Int'l v. Sec'y of Labor, 92 S.W.3d 743, 2002 Ky. App. LEXIS 2340 (Ky. Ct. App. 2002).

Cited:

Kentucky Utilities Co. v. Auto Crane Co., 674 S.W.2d 15, 1983 Ky. App. LEXIS 402 (Ky. Ct. App. 1983); Stovall v. A. O. Smith Corp., 676 S.W.2d 475, 1984 Ky. App. LEXIS 501 (Ky. Ct. App. 1984).

Opinions of Attorney General.

Where Kentucky Department of Labor receives complaints from employees who are faced with choice of driving defective and unsafe vehicles on public highways or being fired, the Department of Labor is not restricted in exercising jurisdiction to just “off the road” job site employees, since this section applies labor’s safety jurisdiction to all employers and employees in all places and an occupational safety and health hazard is, under KRS 338.015 , any detrimental practice or condition in a place of employment; however, the Department of Labor is not required to enforce standards under these sections, and may refrain from exercising that jurisdiction by agreement under KRS 15.610 with other enforcement agencies which exercise dual and overlapping jurisdictions; and the Department of Labor will lose any jurisdiction which it does retain at such time as the Bureau (now Department) of Vehicle Regulation and the Vehicle Equipment Safety Commission promulgate rules, regulations, or a code which supersede the statutes governing the Department of Labor jurisdiction. OAG 81-24 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Kentucky Occupational Safety and Health, § 286.00.

338.030. Employer to furnish safeguards — Effect of failure to use. [Repealed.]

Compiler’s Notes.

This section (1599c-23) was repealed by Acts 1972, ch. 251, § 22.

338.031. Obligations of employers and employees.

  1. Each employer:
    1. Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
    2. Shall comply with occupational safety and health standards promulgated under this chapter.
  2. Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct.

History. Enact. Acts 1972, ch. 251, § 4.

NOTES TO DECISIONS

  1. Knowledge of Regulations.
  2. Fact Issue.
  3. Worker’s Compensation.
  4. Intentional Violation.
  5. Failure to Comply.
  6. —Cause of Action.
  7. Degree of Care.
  8. Independent Contractors.
  9. Substantial Evidence Found.
  10. General Duty Clause.

4.5. Violation under special duty clause.

1. Knowledge of Regulations.

Either the employer must know that a safety regulation exists or the regulation must have been in existence long enough to create a presumption of knowledge before the employer may be assessed a penalty for its violation. Barmet of Kentucky, Inc. v. Sallee, 605 S.W.2d 29, 1980 Ky. App. LEXIS 362 (Ky. Ct. App. 1980).

2. Fact Issue.

In personal injury action, where there was evidence of probative value that decomposed silage had been allowed to accumulate on silo’s steps, an issue of fact was presented as to whether such decomposed silage existed on the steps of the silo and, if so, whether employers were negligent in allowing it to be there and in failing to provide the injured employee a safe place to work. Taylor v. Kennedy, 700 S.W.2d 415, 1985 Ky. App. LEXIS 606 (Ky. Ct. App. 1985).

3. Worker’s Compensation.

This section, which deals with employer and employee shared obligations to promote and insure workplace safety, does not preclude the assessment of a penalty for employer or employee misconduct in the foregoing regard pursuant to KRS 342.165 in a worker’s compensation case involving the Kentucky Occupational Health and Safety Act violation. Whittaker v. McClure, 891 S.W.2d 80, 1995 Ky. LEXIS 6 ( Ky. 1995 ).

Claimant failed to sustain contention that employer intentionally failed to provide ventilation system in vocational school where claimant taught refrigeration, heating and air conditioning where he cited no statute or regulation which required mechanical ventilation or the use of protective gloves or a respirator when working with solvents or sufficient evidence that the employer’s failure to provide this equipment indicated such a gross disregard of patently obvious, basic safety concepts, therefore, there was not an adequate basis to overcome the requirement of KRS 342.165 that a specific statute or regulation concerning it must have been violated in order to justify 15% penalty. Cabinet for Workforce Dev. v. Cummins, 950 S.W.2d 834, 1997 Ky. LEXIS 87 ( Ky. 1997 ).

When a worker was hurt when the worker's supervisor drove a company vehicle after smoking marijuana, the worker was not entitled to a safety violation enhancement because the employer (1) took reasonable steps by obtaining random drug screens and periodically checking driving records before letting employees drive company vehicles and (2) could not reasonably anticipate the supervisor would drive under the influence. Gregory v. A & G Tree Serv., 2018 Ky. App. LEXIS 79 (Ky. Ct. App.), sub. op., 2018 Ky. App. Unpub. LEXIS 971 (Ky. Ct. App. Feb. 16, 2018).

4. Intentional Violation.

Substantial evidence supported administrative law judge’s inference that employer’s violation was intentional where there was evidence that supervisory personnel, including claimant’s foreman, were aware of the defective condition of the grader and substantial evidence supported the conclusion that the grader was moving faster than it would have been were it not defective, thereby contributing to the severity of the accident, and fact that this section was enacted in 1972, precluded an argument that the employer was unaware of its requirements. Therefore, imposition of 15% safety violation penalty was warranted under KRS 342.165 . Apex Mining v. Blankenship, 918 S.W.2d 225, 1996 Ky. LEXIS 19 ( Ky. 1996 ).

Where there was substantial evidence that the employer was aware of the defective condition of the grader, and it was apparent, even to a lay person, that a piece of heavy equipment without brakes, with a decelerator that was not in proper condition and with a throttle fastened in the wide open position created a safety hazard, especially when evidence showed that other operators had been forced to crash the defective machine into other equipment in order to stop it, the case did not concern a safety hazard of which the employer could reasonably have been unaware but instead, concerned a hazard that was obvious. Apex Mining v. Blankenship, 918 S.W.2d 225, 1996 Ky. LEXIS 19 ( Ky. 1996 ).

There was substantial evidence to support the finding that the employer violated the general duty clause of this section, and that it intentionally failed to comply with a specific statute; therefore, under KRS 342.165 , the employer was subject to a fifteen percent (15%) enhancement of the benefit owed to the employee. Lexington-Fayette Urban County Gov't v. Offutt, 11 S.W.3d 598, 2000 Ky. App. LEXIS 10 (Ky. Ct. App. 2000).

Where the father was killed in a work-related accident when the father’s truck rolled off the road and down an 800-foot embankment, where the employer had violated federal regulations that required a berm of sufficient height to stop the truck, and where, as a result, a 30 percent penalty pursuant to KRS 342.165 was awarded to the beneficiary due to the finding that the employer intentionally violated KRS 338.031(1)(a), substantial evidence supported the determination; during the repair of the berm, which was ongoing at the time of the accident, the employer decided to continue sending employees up the dangerous road instead of waiting until the berm was repaired in all sections, and there was evidence that the financial incentive of keeping the trucks running outweighed a prudent consideration of the hazard posed by the inadequate berm. Hawkeye Constr. Co. v. Little, 151 S.W.3d 360, 2004 Ky. App. LEXIS 345 (Ky. Ct. App. 2004).

Even assuming that an employer’s conduct in failing to secure a ladder was an intentional violation of KRS 338.031(1)(a), it was certainly not an egregious violation; accordingly, the Workers’ Compensation Board erred by affirming an administrative law judge’s decision that increased the employee’s temporary total and permanent partial disability benefits. Wehr Constructors, Inc. v. Gibson, 2007 Ky. App. LEXIS 399 (Ky. Ct. App. Oct. 12, 2007).

ALJ correctly applied the four-part Offutt test to determine that the employer violated the general duties provision, KRS 338.031 , and this finding allowed the ALJ to enhance the employee’s weekly income benefits pursuant to KRS 342.165(1); the evidence was sufficient to prove that the employer intentionally violated § 338.031 (1)(a). Hornback v. Hardin Mem. Hosp., 2013 Ky. LEXIS 233 (Ky. May 23, 2013), sub. op., 411 S.W.3d 220, 2013 Ky. LEXIS 577 ( Ky. 2013 ), modified, 2013 Ky. LEXIS 576 (Ky. Oct. 24, 2013).

Regarding whether a hospital intentionally violated KRS 338.031(1)(a), there was sufficient evidence that the hospital intentionally disregarded the safely hazard that can occur if an elevator stalls by failing to take appropriate preventative measures to prevent or reduce the risk of injury. The hospital’s failure to take any prophylactic measures to prevent the claimant from suffering her ultimate fate of falling into an open elevator shaft could only be considered to be an intentional disregard of a safety hazard. Hornback v. Hardin Mem. Hosp., 411 S.W.3d 220, 2013 Ky. LEXIS 577 ( Ky. 2013 ).

4.5. Violation under special duty clause.

To establish a prima facie case for either a serious, or “other than serious”, Kentucky Occupational Safety and Health Act (KOSHA) violation under the special duty clause of KRS 338.031(1)(b), the Labor Cabinet bears the burden of proving, by a preponderance of the evidence, that (1) the cited standard applies to the facts; (2) the requirements of the standard were not met; (3) employees had access to the hazardous or violative condition (i.e., a violative or hazardous condition existed, and employees were exposed to it); and (4) the employer knew or could have known of the hazardous condition with the exercise of reasonable diligence. DOL v. Morel Constr. Co., 359 S.W.3d 438, 443, 2011 Ky. App. LEXIS 56 (Ky. Ct. App. 2011).

Administrative law judge properly found that the statutory general duty clause was violated because testimony from an injured employee and his coworkers established that the various hazards at issue were known to the employer prior to the employee's injury and reasonably contributed to the his injury. Am. Woodmark Corp. v. Mullins, 484 S.W.3d 307, 2016 Ky. App. LEXIS 94 (Ky. Ct. App. 2016).

5. Failure to Comply.
6. —Cause of Action.

Complaint alleging that employer of decedent, murdered while on the job, failed to provide a safe place to work, failed to provide proper equipment, and failed to train decedent in the safe method of doing the work which resulted in his death stated a cause of action. Johnson v. Thoni Oil Magic Benzol Gas Stations, Inc., 467 S.W.2d 772, 1971 Ky. LEXIS 403 ( Ky. 1971 ) (decided under prior law).

Circuit court did not err in finding for an injured worker in his premises liability action against a building owner because the owner owed certain duties to the worker under the Kentucky Occupational Safety and Health Act where the core function of the owner included landscaping and building maintenance, and, even if the worker were an independent contractor, the general duties of employers inured to the benefit of, inter alia, independent contractors themselves, the owner never delegated control or safety compliance to the worker, and the owner's member actively oversaw the maintenance of the rental properties, and directly participated in the maintenance activity at issue. Auslander Props., LLC v. Nalley, 2016 Ky. App. LEXIS 10 (Ky. Ct. App. Jan. 29, 2016), rev'd, 2018 Ky. LEXIS 255 (Ky. June 14, 2018), rev'd, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

7. Degree of Care.

Where evidence showed that decedent, who was killed when bulldozer he was operating went over a retaining wall, was aware of the danger that was present and that work area was safe if bulldozer was operated properly, statute did not operate to make employer an insurer. Robbins v. Shepherd, 509 S.W.2d 278, 1974 Ky. LEXIS 563 ( Ky. 1974 ) (decided under prior law).

8. Independent Contractors.

KOSHA’s protections extend to any employee, including an employee of an independent contractor, who is performing work at another employer’s workplace. Hargis v. Baize, 168 S.W.3d 36, 2005 Ky. LEXIS 158 ( Ky. 2005 ).

Where an employer hired an independent contractor to haul logs and the independent contractor was killed when a log rolled off a trailer and struck him, because the employer had failed to follow KOSHA log-securing procedures, KOSHA protections applied to the decedent contractor, and the employer had violated KRS 338.031(1), KRS 446.070 authorized a private civil action for damages against the employer. Hargis v. Baize, 168 S.W.3d 36, 2005 Ky. LEXIS 158 ( Ky. 2005 ).

Some basic aspects of routine landscape maintenance fall within the core functions of managing and renting real estate but specialized work requires specialized knowledge and skills beyond what is reasonably expected of an ordinary property rental business; an employer who uses a specialized independent contractor properly relies upon the contractor’s skill and superior knowledge of the risks inherent in the work, safety equipment, and techniques required by regulations for minimizing risks. Auslander Props., LLC v. Nalley, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

Handyman’s negligence per se claim failed as a matter of law because a limited liability company (LLC) had no duty to comply with the Kentucky Occupational Safety and Health Act; the handyman was an independent contractor, rather than an employee of the LLC, and was performing specialized work unrelated to the normal operations of the LLC’s property rental business, and thus, the responsibility for complying with safety laws applicable to that specialized work was upon the handyman. Auslander Props., LLC v. Nalley, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

When an employer sends its own employees into harm’s way to perform any task regardless of the nature of the business, the employer must apprise itself of, and comply with, safety regulation applicable to that task, but when the employer engages the services of an independent contractor for a task alien to the core function of the employer’s business, the employer is relying upon the contractor’s special expertise and ability to know and obey the applicable safety standards of that activity. Auslander Props., LLC v. Nalley, 558 S.W.3d 457, 2018 Ky. LEXIS 371 ( Ky. 2018 ).

Construction company did not owe an independent contractor’s employee any duty under the Kentucky Occupational Safety and Health Act where the independent contractor had contracted with the homeowners and had not reached out to the company to coordinate a time for the employee to perform the work, and thus, there was no pseudo employer-employee relationship contemplated by the case law interpreting Ky. Rev. Stat. Ann. § 338.031(1). Holder v. Paragon Homes, LLC, 2020 Ky. App. LEXIS 39 (Ky. Ct. App. Apr. 3, 2020).

9. Substantial Evidence Found.

Substantial evidence supported a citation issued to a subcontractor as a creating employer at a multi-employer work site under KRS 338.031(1)(b) as the subcontractor dug a hole in which another contractor’s employee fell and placed plywood over the hole without securing it in place and marking the hazard. Dep't of Labor v. Hayes Drilling, Inc., 354 S.W.3d 131, 2011 Ky. App. LEXIS 146 (Ky. Ct. App. 2011).

10. General Duty Clause.

Under the general duty clause, it was no error to dismiss a citation based on the Secretary of Labor's (Secretary) failure to show a work implement malfunctioned because the Secretary worded a recognized hazard as caused by a malfunctioning implement, requiring such proof, rather than a general hazard. Sec'y of Labor v. UPS, 512 S.W.3d 739, 2017 Ky. App. LEXIS 38 (Ky. Ct. App. 2017).

It was no error to dismiss a citation for the Secretary of Labor's (Secretary) failure to prove a recognized hazard because the Secretary did not show a malfunctioning work implement caused the hazard, and neither an employer nor the industry recognized this malfunctioning implement as a hazard. Sec'y of Labor v. UPS, 512 S.W.3d 739, 2017 Ky. App. LEXIS 38 (Ky. Ct. App. 2017).

It was no error to dismiss a citation based on the Secretary of Labor's (Secretary) failure to prove a feasible means of abatement of a hazard because, while a means existed, the Secretary showed no recognized hazard, making a feasible abatement's availability immaterial. Sec'y of Labor v. UPS, 512 S.W.3d 739, 2017 Ky. App. LEXIS 38 (Ky. Ct. App. 2017).

Research References and Practice Aids

Kentucky Bench & Bar.

Henley, Violence in the Workplace: Does Workers’ Compensation Apply?, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 24.

Lowther and Lowther, Workplace Injuries: Safety Penalties and Workers’ Compensation Claims, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 22.

Kentucky Law Journal.

Braden, An Insurer’s Liability to Third Parties for Negligent Inspection, 66 Ky. L.J. 910 (1977-1978).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Kentucky Occupational Safety and Health, § 286.00.

338.040. Board to fix and enforce standards of safety. [Repealed.]

Compiler’s Notes.

This section (1599c-24) was repealed by Acts 1972, ch. 251, § 22.

338.041. Administration of matters pertaining to occupational safety and health — Contract with other agencies.

  1. The Department of Workplace Standards in the Labor Cabinet shall administer all matters pertaining to occupational safety and occupational health.
  2. The department may require the assistance of other state agencies and may enter into agreements with other state agencies and political subdivisions of the Commonwealth for the administration of this chapter.
  3. The department may enter into an agreement with the Cabinet for Health and Family Services and other appropriate departments or agencies to conduct research, experiments, and demonstrations relating to occupational safety and health, including studies of psychological factors involved, and relating to innovative methods, techniques, and approaches for dealing with occupational safety and health problems in the administration of this chapter.

History. Enact. Acts 1972, ch. 251, § 5; 1974, ch. 311, § 1; 1976, ch. 299, § 86; 1978, ch. 155, § 155, effective June 17, 1978; 1984, ch. 414, § 18, effective July 13, 1984; 1998, ch. 426, § 560, effective July 15, 1998; 2005, ch. 99, § 608, effective June 20, 2005; 2010, ch. 24, § 1752, effective July 15, 2010.

Opinions of Attorney General.

Basic enforcement powers rest with the Department of Labor, with the Department of Health (now Cabinet for Health and Family Services) merely furnishing technical assistance and research which may aid in enforcement. OAG 72-523 .

The Labor Cabinet has primary enforcement power as to other state agencies and local and county governments. OAG 72-523 .

Research References and Practice Aids

Kentucky Bench & Bar.

Waddell, Kentucky Occupational Safety and Health Practice, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 24.

Northern Kentucky Law Review.

Comments, The Fourth Amendment and the Administrative Search, 5 N. Ky. L. Rev. 219 (1978).

338.042. Expansion of Department of Workplace Standards — Duties of additional staff.

Effective July 1, 1994, the Department of Workplace Standards shall be expanded by sixteen (16) employees. These additional staff shall assist employers in their efforts to improve safety and health practices in their workplaces; to assure compliance with industrial health and safety regulations; and to expedite the processing of contested citations and appeals. These additional expenditures shall be financed by funds collected for the special fund pursuant to KRS 342.122 .

History. Enact. Acts 1994, ch. 181, § 73, effective April 4, 1994; 2010, ch. 24, § 1753, effective July 15, 2010.

338.050. Determination and removal of unsafe working conditions. [Repealed.]

Compiler’s Notes.

This section (1599c-25: amend. Acts 1946, ch. 243) was repealed by Acts 1972, ch. 251, § 22.

338.051. Kentucky Occupational Safety and Health Standards Board — Membership — Terms — Chairman — Meetings — Quorum — Regulations — Compensation.

  1. There is hereby established the Kentucky Occupational Safety and Health Standards Board consisting of the secretary and twelve (12) members equally representing industry, labor, agriculture, and the safety and health profession. The members shall be appointed by the Governor for terms of three (3) years and until their successors are appointed and qualified, from lists of nominees submitted by bona fide associations representative of industry, labor, agriculture, and the safety and health profession. Members shall receive twenty-five dollars ($25) per day for attending each meeting and shall be reimbursed for actual expenses incurred in carrying out their duties. The secretary shall act as chairman of the board. No member of the board may have a concurrent term on the review commission.
  2. The board shall hold annual meetings and additional meetings as needed. A majority of the board constitutes a quorum for the transaction of business.
  3. The board shall adopt and promulgate occupational safety and health rules, regulations, and standards, except that the chairman of the board may adopt established federal standards without board approval if necessary to meet federal time requirements. The board shall secure all expertise, testimony, and evidence necessary to accomplish the purposes of this chapter.
  4. The board shall be attached to the Labor Cabinet for administrative purposes.

History. Enact. Acts 1972, ch. 251, § 6; 1978, ch. 154, § 37, effective June 17, 1978; 1982, ch. 378, § 2, effective July 15, 1982; 1984, ch. 414, § 19, effective July 13, 1984; 2006, ch. 89, § 1, effective July 12, 2006; 2010, ch. 24, § 1754, effective July 15, 2010.

NOTES TO DECISIONS

1. Authority.

Circuit court erred in affirming a decision of the Kentucky Occupational Safety and Health Review Commission (Tribunal) because the Tribunal acted outside its role as a neutral administrative arbiter; the Tribunal relied on a regulation the Kentucky Occupational Safety and Health Standards Board never endorsed, and thus, it effectively expanded the kinds of complaints protected by the Kentucky Occupational Safety and Health Act which was a usurpation of the Board's policy-making authority. Estill County Fiscal Court v. Commonwealth, 2015 Ky. App. LEXIS 24 (Ky. Ct. App.), sub. op., 2015 Ky. App. Unpub. LEXIS 865 (Ky. Ct. App. Feb. 27, 2015).

Cited:

Ernest Simpson Constr. Co. v. Conn, 625 S.W.2d 850, 1981 Ky. LEXIS 310 ( Ky. 1981 ); Secretary of Labor v. Irvin H. Whitehouse & Sons, 977 S.W.2d 250, 1998 Ky. App. LEXIS 76 (Ky. Ct. App. 1998).

Research References and Practice Aids

Kentucky Bench & Bar.

Waddell, Kentucky Occupational Safety and Health Practice, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 24.

Kentucky Law Journal.

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

338.060. Judicial review of board’s action. [Repealed.]

Compiler’s Notes.

This section (1599c-26) was repealed by Acts 1972, ch. 251, § 22.

338.061. Occupational safety and health standards — Suspension, delay, or alteration in enforcement of administrative regulation.

  1. Occupational safety and health standards may be adopted, modified, or repealed by the board through the administrative regulation process of KRS Chapter 13A as it shall deem necessary, except the secretary may through an administrative order suspend, delay, or alter enforcement of a promulgated occupational safety and health administrative regulation if the federal government has suspended, delayed, or enjoined the corresponding federal regulation or suspended, delayed, enjoined, or altered the enforcement thereof. Any action taken by the secretary to suspend, delay, or alter the enforcement of an occupational safety and health administrative regulation pursuant to this subsection shall be consistent with those taken by the federal government, except that the secretary may enforce an administrative regulation or standard which immediately preceded the administrative regulation whose enforcement is amended, delayed, or altered.
  2. Established federal standards and national consensus standards may be adopted by reference.

History. Enact. Acts 1972, ch. 251, § 7; 2006, ch. 89, § 2, effective July 12, 2006; 2018 ch. 8, § 1, effective March 8, 2018.

NOTES TO DECISIONS

Cited:

Kentucky Utilities Co. v. Auto Crane Co., 674 S.W.2d 15, 1983 Ky. App. LEXIS 402 (Ky. Ct. App. 1983); Secretary of Labor v. Irvin H. Whitehouse & Sons, 977 S.W.2d 250, 1998 Ky. App. LEXIS 76 (Ky. Ct. App. 1998).

338.070. Suction and exhaust system for buffing and grinding machinery. [Repealed.]

Compiler’s Notes.

This section (2062f-1) was repealed by Acts 1972, ch. 251, § 22 and by Acts 1972, ch. 326, § 4.

338.071. Kentucky Occupational Safety and Health Review Commission — Membership — Terms — Quorum — Hearings — Regulations — Compensation — Employees.

  1. There is hereby established the Kentucky Occupational Safety and Health Review Commission consisting of three (3) members appointed by the Governor on the basis of their experience and competence in the fields of occupational safety and health. The members selected shall be qualified to represent the interest of employers, employees, and the occupational safety and health profession with a minimum of five (5) years experience in their respective fields.
  2. Members of the review commission shall serve terms of four (4) years and until their successors are appointed.
  3. The review commission shall hold monthly meetings and additional meetings as deemed necessary. A majority of the review commission constitutes a quorum for the transaction of business. Special meetings of the review commission may be called upon reasonable notice by the commissioner or by any two (2) members of the commission.
  4. The review commission shall hear and rule on appeals from citations, notifications, and variances issued under the provisions of this chapter and adopt and promulgate rules and regulations with respect to the procedural aspect of its hearings.
  5. The review commission shall have the authority to employ a secretary, hearing officers, and other employees as may become necessary.
  6. The chairman of the commission and each of the other two (2) members shall be paid a salary fixed under KRS 64.640 .
  7. The secretary of the commission shall be paid a salary to be fixed by the commission, with the approval of the Governor. The commission shall fix the compensation of all its other employees.
  8. The commissioners and the secretary and employees of the commission are entitled to all necessary expenses incurred in traveling on business of the commission.
  9. The commission shall be attached to the Labor Cabinet for administrative purposes only.

History. Enact. Acts 1972, ch. 251, § 8; 2005, ch. 123, § 38, effective June 20, 2005; 2010, ch. 24, § 1755, effective July 15, 2010.

NOTES TO DECISIONS

1. Authority.

The Kentucky Occupational Safety and Health Review Commission is the ultimate decision-maker in occupational safety and health cases and may either hear cases themselves or hire hearing officers to serve in its place; however, the final authority rests with the Commission, and the Commission is not bound by the decision of the hearing officer. Secretary of Labor v. Boston Gear, Inc., 25 S.W.3d 130, 2000 Ky. LEXIS 89 ( Ky. 2000 ).

Circuit court erred in affirming a decision of the Kentucky Occupational Safety and Health Review Commission (Tribunal) because the Tribunal acted outside its role as a neutral administrative arbiter; the Tribunal relied on a regulation the Kentucky Occupational Safety and Health Standards Board never endorsed, and thus, it effectively expanded the kinds of complaints protected by the Kentucky Occupational Safety and Health Act which was a usurpation of the Board's policy-making authority. Estill County Fiscal Court v. Commonwealth, 2015 Ky. App. LEXIS 24 (Ky. Ct. App.), sub. op., 2015 Ky. App. Unpub. LEXIS 865 (Ky. Ct. App. Feb. 27, 2015).

Cited:

A & H Truck Line, Inc. v. Kentucky Occupational Safety & Health Review Com., 536 S.W.2d 315, 1976 Ky. LEXIS 70 ( Ky. 1976 ).

Opinions of Attorney General.

This section and KRS 338.081 and 338.091 seem to make adequate provision for due process in the enforcement of provisions of the Occupational Safety and Health Act. OAG 72-523 .

The Kentucky Occupational Safety and Health Review Commission (KOSHRC), is an exclusively quasi-judicial body and is not subject to the Open Meetings Law; however, its hearings must be open to the public when it is receiving evidence but after a hearing it may deliberate in private as a jury would. OAG 83-259 .

There is nothing in this section and KRS 338.081 or related statutes that would prohibit a member of the occupational safety and health review commission or any employee thereof, whether under contract or otherwise, from becoming a candidate for public office and at the same time retaining his position; this being the case, there is no constitutional or statutory objection to a hearing officer appointed by the commission pursuant to KRS 338.081 from becoming a candidate for nomination and election to the office of state representative. OAG 84-103 .

Upon review of this section and KRS 64.640 , as well as of KRS 18A.350 , 18A.355 , and 18A.360 (now repealed), the incumbents of the Occupational Safety Health and Review Commission are included under the language of KRS 18A.350 which defines employee as any officer or employee of the executive branch of government; therefore, it would appear that the members of the Occupational Safety Health and Review Commission are eligible for annual increments, although it is entirely possible that this was not the intent of the legislature. OAG 90-25 .

Research References and Practice Aids

Kentucky Bench & Bar.

Waddell, Kentucky Occupational Safety and Health Practice, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 24.

338.080. Hoods—Suction and exhaust pipes. [Repealed.]

Compiler’s Notes.

This section (2062f-1 to 2062f-3) was repealed by Acts 1972, ch. 251, § 22 and by Acts 1972, ch. 326, § 4.

338.081. Hearing officer — Employment — Powers.

  1. Hearings authorized by the provisions of this chapter may be conducted by a hearing officer appointed by the review commission to serve in its place. Said hearing officer may be a full-time employee, serve by contract, or be paid on a per diem basis at the discretion of the review commission.
  2. In the conduct of these hearings, the review commission or hearing officer may subpoena and examine witnesses, require the production of evidence, administer oaths, and take testimony and depositions.
  3. After hearing an appeal, the review commission may sustain, modify or dismiss a citation or penalty.

History. Enact. Acts 1972, ch. 251, § 9.

NOTES TO DECISIONS

1. Authority.

The Kentucky Occupational Safety and Health Review Commission is the ultimate decision-maker in occupational safety and health cases and may either hear cases themselves or hire hearing officers to serve in its place; however, the final authority rests with the Commission, and the Commission is not bound by the decision of the hearing officer. Secretary of Labor v. Boston Gear, Inc., 25 S.W.3d 130, 2000 Ky. LEXIS 89 ( Ky. 2000 ).

Opinions of Attorney General.

There is nothing in KRS 338.071 and this section or related statutes that would prohibit a member of the occupational safety and health review commission or any employee thereof, whether under contract or otherwise, from becoming a candidate for public office and at the same time retaining his position; this being the case, there is no constitutional or statutory objection to a hearing officer appointed by the commission pursuant to this section from becoming a candidate for nomination and election to the office of state representative. OAG 84-103 .

338.090. Fans — Suction required. [Repealed.]

Compiler’s Notes.

This section (2062f-4) was repealed by Acts 1972, ch. 251, § 22 and by Acts 1972, ch. 326, § 4.

338.091. Appeals — Procedure.

  1. Any party adversely affected or aggrieved by a final order of the review commission may appeal within thirty (30) days to the Franklin Circuit Court on the record for a review of such order. No new evidence may be introduced in the Circuit Court. An appeal may be taken to the Court of Appeals from any decision of the Circuit Court under this section.
  2. The commencement of proceedings under this section shall not, unless ordered by the court, operate as a stay of an order of the review commission.

History. Enact. Acts 1972, ch. 251, § 10.

NOTES TO DECISIONS

Analysis

2. Order final by operation of law

Where Occupational Safety and Health Review Commission failed to take action on its hearing officer’s decision within 40 days, this resulted in the decision becoming final by operation of law; later order of Commission that purported to grant petition for review had no legal effect; there was no statutory provision authorizing the Commission to reconsider its final decision or to extend the period of time for taking an appeal of its final order. Elliot Electric/Kentucky, Inc. v. Ky. OSHRC, 323 S.W.3d 373, 2010 Ky. App. LEXIS 172 (Ky. Ct. App. 2010).

Where Occupational Safety and Health Review Commission failed to take action on its hearing officer’s decision within 40 days, this resulted in the decision becoming final by operation of law; later order of Commission that purported to grant petition for review had no legal effect, notwithstanding regulatory provisions which permitted any party aggrieved by a final order of the commission to file a motion for stay, since the regulations did not confer any authority upon the Commission to modify or alter its final order. Elliot Electric/Kentucky, Inc. v. Ky. OSHRC, 323 S.W.3d 373, 2010 Ky. App. LEXIS 172 (Ky. Ct. App. 2010).

3. Equitable tolling

Doctrine of equitable tolling did not apply to suspend running of 30 day period for aggrieved party to file appeal to Franklin Circuit Court where, after Commission initially failed to take action on its hearing officer’s decision within 40 day period, a later order of Occupational Safety and Health Review Commission purported to grant petition for review. Elliot Electric/Kentucky, Inc. v. Ky. OSHRC, 323 S.W.3d 373, 2010 Ky. App. LEXIS 172 (Ky. Ct. App. 2010).

Notes to Unpublished Decisions

1. Stay.

Unpublished decision: Employer’s motion for reconsideration, which was filed with the Kentucky Occupational Safety and Health Review Commission after it had rendered its final order, did not stay the 30-day period allowed for an appeal under KRS 338.091(1); given the procedural history of the case, nothing in KRS ch. 338 specifically conferred upon the Commission the power to reconsider or reopen a final order that it had issued. Gaines v. Ky. OSHRC, 326 S.W.3d 818, 2010 Ky. App. LEXIS 71 (Ky. Ct. App. 2010).

Research References and Practice Aids

Kentucky Bench & Bar.

Waddell, Kentucky Occupational Safety and Health Practice, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 24.

338.100. Commissioner to enforce laws—Inspections. [Repealed.]

Compiler’s Notes.

This section (1599c-18, 2062f-5) was repealed by Acts 1972, ch. 251, § 22 and by Acts 1972, ch. 326, § 4.

338.101. Authority of commissioner.

  1. In order to carry out the purposes of this chapter, the commissioner or the commissioner’s authorized representative shall have the authority:
    1. To enter without delay and advance notice any place of employment during regular working hours and at other reasonable times in order to inspect such places, question privately any such employer, owner, operator, agent, employee, or employee’s representative, and investigate such facts, conditions, practices, or matters deemed appropriate to determine the cause of, or to prevent the occurrence of, any occupational injury or illness.
    2. To administer oaths, take depositions, conduct hearings, take photographs, review any and all accident and illness records, and secure any other evidence deemed necessary to evaluate any occupational safety and health hazard in order to ascertain whether any person has violated any provision of this chapter or regulations issued pursuant thereto.
  2. If an employer refuses such entry, then the commissioner may apply to the Franklin Circuit Court for an order to enforce the right of entry.

History. Enact. Acts 1972, ch. 251, § 11; 2010, ch. 24, § 1756, effective July 15, 2010.

NOTES TO DECISIONS

  1. Construction.
  2. Health and Safety Inspections.
  3. Administrative Appeals.
1. Construction.

Subsection (2) of this section is not in conflict with KRS 24A.110(1) as the latter statute deals exclusively with the jurisdiction of district court in criminal matters. Stovall v. A. O. Smith Corp., 676 S.W.2d 475, 1984 Ky. App. LEXIS 501 (Ky. Ct. App. 1984).

Subsection (2) of this section vests exclusive jurisdiction in the Franklin County Circuit to issue a search warrant to enforce the right of entry of the commissioner to conduct inspections in business not otherwise excluded by KRS 338.021 . Stovall v. A. O. Smith Corp., 676 S.W.2d 475, 1984 Ky. App. LEXIS 501 (Ky. Ct. App. 1984).

2. Health and Safety Inspections.

In the absence of any showing that a tractor company was inherently dangerous, was subject to federal or state regulation or licensing, was pervasively regulated or was an industry with a long history of regulation, a health and safety inspection of the closed area of the premises would not be permitted without a search warrant or court order, either of which must be based upon a showing of probable cause. Yocom v. Burnette Tractor Co., 555 S.W.2d 823, 1977 Ky. App. LEXIS 803 (Ky. Ct. App. 1977), aff'd, 566 S.W.2d 755, 1978 Ky. LEXIS 365 ( Ky. 1978 ).

The probable cause requirement for inspection may be satisfied by demonstrating that the place to be inspected is of the general type due for inspection under statutory or administrative standards setting up categories of places subject to inspection and bearing a rational connection to the goal sought to be achieved by the Kentucky Occupational Health and Safety Act and a showing of “reasonable ground of suspicion of violation” in the particular premises is not required before probable cause to inspect is deemed satisfied. Yocom v. Burnette Tractor Co., 566 S.W.2d 755, 1978 Ky. LEXIS 365 ( Ky. 1978 ).

The U.S. Const., Amend. 4 and Ky. Const., § 10 require a search warrant or court order “based upon a showing of probable cause” to permit a search and inspection by state inspection officials of the closed areas of business premises whose health and safety conditions are statutorily regulated in the absence of any showing that the business is inherently dangerous, or in the absence of any showing that their business was subject to federal or state regulation and/or license, or pervasively regulated or an industry with a long history of regulation. Yocom v. Burnette Tractor Co., 566 S.W.2d 755, 1978 Ky. LEXIS 365 ( Ky. 1978 ).

A county Circuit Court lacked jurisdiction to quash three (3) search warrants, and the corporations whose premises were searched pursuant to the warrants were required to exhaust their administrative remedies. Kentucky Labor Cabinet v. Graham, 43 S.W.3d 247, 2001 Ky. LEXIS 65 ( Ky. 2001 ), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ).

3. Administrative Appeals.

The Kentucky Occupational Safety and Health Review Commission has authority to remand an administrative appeal to a hearing officer to renew or continue taking evidence. Secretary of Labor v. Boston Gear, Inc., 25 S.W.3d 130, 2000 Ky. LEXIS 89 ( Ky. 2000 ).

Cited:

A & H Truck Line, Inc. v. Kentucky Occupational Safety & Health Review Com., 536 S.W.2d 315, 1976 Ky. LEXIS 70 ( Ky. 1976 ); Richmond v. Commonwealth, 637 S.W.2d 642, 1982 Ky. LEXIS 288 ( Ky. 1982 ).

Opinions of Attorney General.

The term “question privately” in subdivision (1)(a) of this section, makes any statement taken from an employee, or other person authorized to be questioned by the statute, confidential and, as such, it is exempt from mandatory public disclosure by KRS 61.878(1)(j) (now (1)(l)); accordingly, the Department of Labor properly denied inspection of the statements of witnesses, taken in private interviews, concerning the fatal injury of a worker. OAG 82-192 .

Inspection of witness statements made by employees to a compliance officer of the department of labor concerning a fatality at a construction company was properly denied under the Open Records Law. OAG 83-5 .

Statements of witnesses to a fatal construction accident taken in private interviews by officials from the department of labor are exempt from mandatory public disclosure by KRS 61.878(1)(j) (now (1)(l)); the mere fact that two pages of a four (4) page statement by one (1) of the witnesses were mistakenly included in papers released to an attorney, did not estop the department of labor from refusing to release the other two (2) pages of the statement. OAG 83-140 .

The compliance officer’s worknotes and the two (2) employee statements made during an investigation of an accident were exempt from public inspection as “preliminary” under KRS 61.878(1)(g) and (1)(h) (now (1)(i) and (j)). OAG 84-275 .

Disclosure of employee interview statements included in records involving Labor Cabinet report relative to incident involving death of employee made under subdivision (1)(a) of this section were confidential and exempt from mandatory disclosure under KRS 61.878(1)(j) (now (1)(l)). OAG 84-345 .

The term “question privately” in subdivision (1)(a) of this section makes any statement taken from an employee confidential and, therefore, exempt from mandatory public disclosure by KRS 61.878(1)(j) (now (1)(l)). OAG 84-365 ; OAG 85-58 .

Even if a settlement has been reached relative to Occupational Safety and Health Administration charges, material which was excluded from public inspection pursuant to KRS 61.878(1)(g), (h) and (j) (now (1)(i), (j) and (l)) and subdivision (1)(a) of this section may still be excluded in the absence of a court order to the contrary, as the status of this material as preliminary matters and confidential interviews will not change regardless of what happens relative to any charges which might have been filed. OAG 85-58 .

The Labor Cabinet acted in conformity with the Open Records Law in denying access to records in an occupational safety and health investigative file consisting of a compliance officer’s worknotes and six (6) employee interview statements relating to a sewer man-hole accident. OAG 85-123 .

Subdivision (1)(a) of KRS 61.878 is not limited to the prevention of inspection by the employer of the interview statements of his own employees; it precludes the public inspection of any employee interview statement obtained under the provisions of this section. OAG 85-142 .

The term “question privately” in subdivision (1)(a) of this section makes any statement taken from an employee confidential and, therefore, exempt from mandatory public disclosure by KRS 61-878(1)(j) (now (1)(l)). OAG 85-142 ; 85-146; 86-3.

The Labor Cabinet’s denial of the request to furnish the names of the employees from whom the Labor Cabinet obtained statements pursuant to subdivision (1)(a) of this section proper under subdivision (1)(j) (now (1)(l)) of KRS 61.878 of the Open Records Act and subdivision (1)(a) of this section. OAG 86-3 .

Denial of the request to inspect the compliance officer’s worknotes and the three (3) employee interview statements in the occupational safety and health investigative file was proper under the Open Records Law pursuant to subdivisions (1)(g), (h) and (j) of KRS 61.878 (now subdivisions (1)(i), (j) and (l)) and subdivision (1)(a) of this section. OAG 86-14 .

The denial of inspection of the records in the occupational safety and health investigative files consisting of the compliance officer’s worknotes and the five (5) employee interview statements was proper under the Open Records Law pursuant to subdivisions (1)(g), (h) and (j) of KRS 61.878 (now subdivisions (1)(i), (j) and (l)) and subdivision (1)(a) of this section. OAG 86-27 .

Denial of inspection of the compliance officer’s worknotes and the employee interview statement was proper under the Open Records Law pursuant to subdivisions (1)(g), (h), and (j) of KRS 61.878 (now subdivisions (1)(i), (j) and (l)) and subdivision (1)(a) of this section. OAG 86-37 .

The Labor Cabinet’s refusal to permit the requesting party to inspect and copy two (2) employee interview statements obtained in connection with an occupational safety and health investigation of a fatal accident at a work site was proper under subdivision (1)(a) of this section and subdivision (1)(j) of KRS 61.878 . OAG 86-57 .

Denial of the request to inspect and copy the compliance officer’s worknotes and the employee interview statements was proper under the Open Records Law pursuant to subdivisions (1)(g), (h) and (j) of KRS 61.878 (now subdivisions (1)(i), (j) and (l)) and subdivision (1)(a) of this section. OAG 87-9 .

Denial of the request to inspect and copy the occupational safety and health compliance officer’s worknotes and the twelve employee interview statements was proper under subdivisions (1)(g), (h) and (j) of KRS 61.878 (now subdivisions (1)(i), (j) and (l)) and subdivision (1)(a) of this section; furthermore, a public agency is not mandatorily required to furnish copies of records to a requesting party by mail when the requesting party has not first inspected those records and then selected the items he or she wants copied, particularly when numerous or lengthy records and documents are involved. OAG 87-68 .

Denial of inspection of the compliance officer’s worknotes and the two (2) employee interview statements was proper under subdivisions (1)(g), (h), and (j) of KRS 61.878 (now subdivisions (1)(i), (j) and (l)) of the Open Records Act and subdivision (1)(a) of this section. OAG 87-79 .

The Labor Cabinet’s denial of the request to inspect the compliance officer’s worknotes and the three (3) employee interview statements was justified under the Open Records Law pursuant to subdivisions (1)(g), (h), and (j) of KRS 61.878 (now subdivisions (1)(i), (j) and (l)) of the Open Records Act and subdivision (1)(a) of this section. OAG 88-9 .

The term “question privately” makes any statement taken from an employee, in the context of an occupational safety and health investigation under this section, confidential and, therefore, exempt from mandatory public disclosure. OAG 88-67 .

The Labor Cabinet’s denial of the request to inspect four (4) employee interview statements, in an occupational safety and health file regarding an investigation of two (2) deaths, was justified pursuant to subdivision (1)(j) of KRS 61.878 (now (1)(l)) of the Open Records Act and subdivision (1)(a) of this section. OAG 89-10 .

Where a person makes, to the Kentucky Labor Cabinet, a complaint that results in an OSHA inspection, this differs from an employee making a statement in response to questioning during an OSHA inspection, and subdivision (1)(a) of this section and KRS 61.878(1)(j) (now (1)(l)) do not properly apply in support of a denial of the target employer’s request for information concerning the source of the complaint. OAG 89-52 .

An employee interview statement is exempt from release by subsection (1) of this section and KRS 61.878(1)(j) (now (1)(l)). OAG 89-64 .

An occupational safety and health compliance officer’s worknotes generated in the course of an investigation of a work site, and containing preliminary drafts of possible citations, along with the compliance officer’s observations and opinions, may properly be withheld under authority of KRS 61.878(1)(i) and (j). OAG 02-ORD-157.

Employee interview statements that were obtained by a compliance officer under authority of KRS 338.101(1)(a), and that are located in the investigative file, are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(l). OAG 02-ORD-157.

Employee interview statements that were obtained by a compliance officer under authority of KRS 338.101(1)(a), and that are located in the investigative file, are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(l). OAG 03-ORD-72.

The Environmental and Public Protection Cabinet, Department of Labor, did not violate the Open Records Act in denying requests for inspection reports, documents, photographs, and/or videos pertaining to inspections at a manufacturing facility and properly redacted information identifying employees pursuant to KRS 338.101(1)(a), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Further, because the file relating to another inspection contains records that were compiled in the process of detecting statutory or regulatory violations which contain information, the premature disclosure of which could jeopardize a prospective administrative adjudication, the Department properly denied a request as to those records on the basis of KRS 61.878(1)(h). OAG 05-ORD-168.

Research References and Practice Aids

Kentucky Bench & Bar.

Waddell, Kentucky Occupational Safety and Health Practice, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 24.

Northern Kentucky Law Review.

Comments, The Fourth Amendment and the Administrative Search, 5 N. Ky. L. Rev. 219 (1978).

338.110. Seats to be provided for female employes. [Repealed.]

Compiler’s Notes.

This section (4866b-3) was repealed by Acts 1972, ch. 251, § 22.

338.111. Employer and employee representation.

A representative of the employer and a representative authorized by the employees shall be given an opportunity to accompany the representative of the commissioner during the physical inspection of any place of employment as authorized by KRS 338.101 . If there is no authorized employee representative available at the time of inspection, the commissioner’s representative shall consult with a reasonable number of employees concerning matters of occupational safety and health in the place of employment. The representative of the commissioner shall be in full charge of the inspection, including the right to limit the number of representatives on the inspection team.

History. Enact. Acts 1972, ch. 251, § 12; 2010, ch. 24, § 1757, effective July 15, 2010.

NOTES TO DECISIONS

1. Citation Not Void.

Citation against a subcontractor working on a multi-employer work site under the Kentucky Occupational Safety and Health Act (KOSHA), KRS 338.011 et seq., was not void for a failure to comply with KRS 338.111 as the subcontractor did not show prejudice, was no longer on site when the inspection was conducted, and would have required advance notice, which would have defeated the purpose of KOSHA; the primary contractor was afforded the opportunity to attend the opening conference and walk around inspection. Dep't of Labor v. Hayes Drilling, Inc., 354 S.W.3d 131, 2011 Ky. App. LEXIS 146 (Ky. Ct. App. 2011).

Research References and Practice Aids

Kentucky Bench & Bar.

Waddell, Kentucky Occupational Safety and Health Practice, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 24.

338.120. Toilet and dressing rooms to be provided for employees. [Repealed.]

Compiler’s Notes.

This section (4866b-4) was repealed by Acts 1972, ch. 251, § 22.

338.121. Request for inspection — Discrimination against employee prohibited — Recourse.

  1. Any employee, or representative of employees, who believes that a violation of an occupational safety and health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the commissioner of such violation or danger. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or the employer’s agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his or her name and the names of individual employees referred to therein shall not appear in such copy.
  2. If upon receipt of notification, reasonable grounds are believed to exist for such violation or danger, then a special inspection shall be made in accordance with the provisions of KRS 338.101 and 338.111 . If no reasonable grounds are believed to exist for such violation of danger, then the commissioner shall notify the employee or the representative of the employees in writing of such determination.
    1. No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or herself or others of any right afforded by this chapter; and (3) (a) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or herself or others of any right afforded by this chapter; and
    2. Any employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of this subsection may, within a reasonable time after such violation occurs, file a complaint with the commissioner alleging such discrimination. Upon receipt of such complaint, the commissioner shall cause such investigation to be made as deemed appropriate. If upon such investigation, the commissioner determines that the provisions of this subsection have been violated, he or she shall issue a citation to the employer which may be challenged or contested in accordance with the provisions of this chapter and the review commission may order all appropriate relief including rehiring and reinstatement of the employee to his or her former position with back pay. Upon an initial determination by the commissioner that an employee has been discharged by an employer in violation of subsection (3)(a) of this section, the secretary of the Labor Cabinet may order reinstatement of the employee pending a final determination and order of the review commission.

History. Enact. Acts 1972, ch. 251, § 13; 1986, ch. 177, § 1, effective July 15, 1986; 1992, ch. 134, § 1, effective July 14, 1992; 2010, ch. 24, § 1758, effective July 15, 2010.

NOTES TO DECISIONS

Analysis

  1. Preemption of Wrongful Discharge Claims.
  2. Wrongful Discharge.
  3. Authority.
  4. Complain.
1. Preemption of Wrongful Discharge Claims.

Since both the federal OSHA statute, 29 USCS § 660(c), and this section create a public policy exception by prohibiting termination or discrimination against employees who refuse to violate the statutes, and since both statutes provide a structure for employees to pursue when alleging violations, the statutes preempt wrongful discharge claims based on OSHA. Hines v. Elf Atochem N. Am., 813 F. Supp. 550, 1993 U.S. Dist. LEXIS 1622 (W.D. Ky. 1993 ).

2. Wrongful Discharge.

Kentucky authorities had jurisdiction under KRS 338.121 over the wrongful discharge claim of a pesticide worker who filed a complaint with the Kentucky Secretary of Labor alleging state law violation; the Kentucky Occupational Safety and Health Review Commission correctly concluded that the worker’s mother’s phone call to the Occupational Safety and Health Administration on the worker’s behalf was a protected activity and that the worker’s employer terminated the worker because the worker engaged in a protected activity. Terminix Int'l v. Sec'y of Labor, 92 S.W.3d 743, 2002 Ky. App. LEXIS 2340 (Ky. Ct. App. 2002).

Terminated environmental technician’s wrongful discharge claim based on the public policy in KRS 338.121 was preempted, in keeping with the holding in Grzyb v. Evans, 700 S.W.2d 399, 401, 1985 Ky. LEXIS 279 , because the statute provided both the unlawful act and specified the civil remedy available to aggrieved parties. Benningfield v. Pettit Envtl., Inc., 183 S.W.3d 567, 2005 Ky. App. LEXIS 201 (Ky. Ct. App. 2005).

In determining whether a violation of KRS 338.121 occurred, Kentucky Occupational Safety and Health Review Commission correctly utilized the procedure set forth in Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); once the Secretary has established a prima facie case, the employer must show by a preponderance of the evidence that it would have taken the same action in the absence of the protected activity. Secretary of Labor v. Boston Gear, Inc., 2000 O.S.H. Dec. (CCH) ¶2182, 25 S.W.3d 130, 2000 Ky. LEXIS 89 ( Ky. 2000 ).

Substantial evidence supported Kentucky Occupational Safety and Health Review Commission decision that two employees were terminated for complaining to OSHA, though one of the employees did not in fact file a complaint; although employer claimed the employees were terminated for troubled work histories, they had worked for employer for 5 years and 11 years respectively, both employees were terminated within months of the complaint, and further, employer did not follow its own personnel policy of issuing one-day “decision making leave” (DML) prior to termination. Secretary of Labor v. Boston Gear, Inc., 25 S.W.3d 130, 2000 Ky. LEXIS 89 ( Ky. 2000 ).

3. Authority.

Circuit court erred in affirming a decision of the Kentucky Occupational Safety and Health Review Commission (Tribunal) because the Tribunal acted outside its role as a neutral administrative arbiter; the Tribunal relied on a regulation the Kentucky Occupational Safety and Health Standards Board never endorsed, and thus, it effectively expanded the kinds of complaints protected by the Kentucky Occupational Safety and Health Act which was a usurpation of the Board's policy-making authority. Estill County Fiscal Court v. Commonwealth, 2015 Ky. App. LEXIS 24 (Ky. Ct. App.), sub. op., 2015 Ky. App. Unpub. LEXIS 865 (Ky. Ct. App. Feb. 27, 2015).

4. Complain.

Based on persuasive federal authority and case law from the Court of Appeals of Kentucky, a hearing officer and the Kentucky Occupational Safety and Health Review Commission reasonably interpreted the word “complain” as encompassing an employee-to-employer letter, and as a result, although not required, that interpretation was given deference as it was not only reasonable, but also in accord with the purpose of the Kentucky Occupational Safety and Health Act. Ky. OSHRC v. Estill Cnty. Fiscal Court & Secy. of Labor, 503 S.W.3d 924, 2016 Ky. LEXIS 559 ( Ky. 2016 ).

Notes to Unpublished Decisions

Analysis

  1. Preemption of Wrongful Discharge Claims.
  2. Wrongful Discharge.
1. Preemption of Wrongful Discharge Claims.

Unpublished decision: Former employee’s suit was properly dismissed because the Kentucky Occupational Safety and Health Act (KOSHA), KRS 338.010 et seq. had preempted other law with regard to the employee’s wrongful discharge claim; the employee’s sole avenue for relief was to pursue his claims pursuant to the procedures outlined in the KOSHA because: (1) a suit could be brought pursuant to KRS 446.070 , which allowed a person injured by a statutory violation to recover damages, only if the statute at issue was penal in nature or where, by its terms, the statute did not prescribe a remedy for its violation; (2) the KOSHA provided remedies for wrongful discharges, which was the wrong claimed by the employee as the basis for his suit; and (3) the employee was limited to the remedies provided by the KOSHA because that statute outlined the procedures for obtaining relief against wrongful, retaliatory discharges by employers and gave the Kentucky Occupational Safety and Health Review Commission authority to provide all appropriate relief, including compensatory and punitive damages. Maiden v. N. Am. Stainless, L.P., 125 Fed. Appx. 1, 2004 U.S. App. LEXIS 25998 (6th Cir. Ky. 2004 ).

2. Wrongful Discharge.

Unpublished decision: Where: (1) a former employee asserted that he was wrongfully terminated after supplying pictures of mining equipment to another employee for the second employee’s workers’ compensation claim, (2) the former employee did not offer any argument that he was discharged for refusing to violate a law in the course of his employment, and (3) the former employee did not argue that his discharge was because he exercised a right well-established through legislation, KRS 338.121(3)(a), 338.121(3)(b), and 351.193 , which the former employee cited in support of his public-policy argument, conferred no such a right. Hall v. Consol of Kentucky, 162 Fed. Appx. 587, 2006 FED App. 0063N, 2006 U.S. App. LEXIS 1711 (6th Cir. Ky. 2006 ).

Opinions of Attorney General.

Both the history of the Kentucky occupational safety and health statutes and the requirements of the federal Occupational Safety and Health Act of 1970 authorizing a state to submit an approved plan indicate an intent to cover state, municipal, and other political subdivision employees under the state act, and civil penalties may be assessed against such entities. OAG 75-161 .

Research References and Practice Aids

Northern Kentucky Law Review.

Kentucky Survey Issue: Article: Off-Duty Privacy: How Far Can Employers Go?, 37 N. Ky. L. Rev. 287 (2010).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Employment Discrimination, § 284.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Kentucky Occupational Safety and Health, § 286.00.

ALR

Liability for retaliation against at will employee for public complaints or efforts relating to health or safety. 75 A.L.R.4th 13.

Discrimination against, or discharge of employee because of exercise of right afforded by OSHA, under 29 USCS § 660(c)(1). 66 A.L.R. Fed. 650.

338.130. Copy of law to be posted — Enforcement. [Repealed.]

Compiler’s Notes.

This section (1599c-16, 4866b-6) was repealed by Acts 1972, ch. 251, § 22.

338.131. Abatement of danger — Commissioner may apply for injunction.

  1. Whenever an authorized representative of the commissioner determines that conditions in any place of employment are of an imminent danger which reasonably could be expected to cause death or serious physical harm, then he or she shall order the danger to be immediately abated. Any order issued under this section may require such steps to be taken as may be necessary to avoid, correct, or remove such imminent danger and prohibit the employment or presence of any individual in locations or under conditions where such imminent danger exists, except individuals whose presence is necessary to avoid, correct, or remove such imminent danger or to maintain the capacity of a continuous process operation to resume normal operations without a complete cessation of operations, or where a cessation of operations is necessary, to permit such to be accomplished in a safe and orderly manner.
  2. In the event the danger is not abated immediately, the commissioner shall apply to the Franklin Circuit Court for an order to restrain such condition or practice.

History. Enact. Acts 1972, ch. 251, § 14; 2010, ch. 24, § 1759, effective July 15, 2010.

338.133. Injunction to restrain operation of unsafe premises or equipment.

  1. If in the discretion of the commissioner it is believed that a place of employment, equipment, or practice is substantially dangerous to employees, or other persons, then the commissioner may apply to the Circuit Court in the county wherein the condition is located for a temporary injunction restraining the operation or segment of operation.
  2. The Circuit Court shall hear the application for the temporary injunction as soon as possible, irrespective of the regular court calendar.
  3. The commissioner shall not be required to post any bond or pay any court costs or fees with the filing of the application.

History. Enact. Acts 1972, ch. 326, § 2; 1980, ch. 188, § 263, effective July 15, 1980; 2010, ch. 24, § 1760, effective July 15, 2010.

338.140. Physician or surgeon for industrial plant — Selection of. [Repealed.]

Compiler’s Notes.

This section (4618-112) was repealed by Acts 1972, ch. 251, § 22.

338.141. Issuance of citation by commissioner — Additional time for compliance — Hearing.

  1. If upon inspection an authorized representative of the commissioner finds that an employer has violated any requirement of this chapter, a citation shall be issued to the employer. Each citation shall describe the alleged violation, establish the time period permitted for correction by fixing a reasonable date by which the alleged violation shall be eliminated, and propose the civil penalty to be paid. If within fifteen (15) working days from the receipt of the citation an employer, employee, or representative of the employees fails to notify the commissioner that he or she intends to contest the citation, then the citation shall be deemed a final order of the review commission and not be subject to review by any court or agency.
  2. The commissioner, upon determination that an employer is acting in good faith to correct the cited violation, may grant additional time for compliance upon application by the employer.
  3. If an employer, employee, or representative of the employees notifies the commissioner that he or she intends to challenge a citation issued under this section or under KRS 338.131 , the commissioner shall notify the review commission of such notification and the review commission shall afford an opportunity for a hearing.
  4. In the case of any review proceedings initiated by an employer, employee, or representative of the employees under this chapter, the time period permitted for correction of cited violations may be extended by the review commission.

History. Enact. Acts 1972, ch. 251, § 15; 1972 (1st Ex. Sess.), ch. 7, § 1; 2010, ch. 24, § 1761, effective July 15, 2010.

NOTES TO DECISIONS

1. Abatement Requirements.

It was the Kentucky Occupational Safety and Health Act’s, KRS 338.011 et seq., purpose to prevent the first accident and recurring accidents, and where the citation acknowledged that the alleged violation had been eliminated on April 19, 2005, and a subcontractor was informed that abatement was not an issue, the requirements of KRS 338.141 were met. Dep't of Labor v. Hayes Drilling, Inc., 354 S.W.3d 131, 2011 Ky. App. LEXIS 146 (Ky. Ct. App. 2011).

Research References and Practice Aids

Kentucky Bench & Bar.

Waddell, Kentucky Occupational Safety and Health Practice, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 24.

338.150. Counter-floors required in building construction in cities of the first and second classes. [Repealed.]

Compiler’s Notes.

This section (2741k-1) was repealed by Acts 1972, ch. 251, § 22.

338.151. Variances. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 251, § 16) was repealed by Acts 1974, ch. 311, § 4.

338.153. Applications for variances — Procedure for granting — Temporary order.

  1. Any affected employer may apply to the commissioner for a rule or order for a variance from a standard promulgated under this chapter. Affected employees shall be given notice of each such application and an opportunity to participate in a hearing. The commissioner shall issue such rule or order if he or she determines on the record, after opportunity for an inspection where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his or her employees which are as safe and healthful as those which would prevail if he or she complied with the standard. The rule or order so issued shall prescribe the conditions the employer must maintain, and the practices, means, methods, operations, and processes which he or she must adopt and utilize to the extent they differ from the standard in question. Such a rule or order may be modified or revoked upon application by an employer, employees, or by the commissioner of his or her own motion, in the manner prescribed for its issuance under this subsection at any time after six (6) months from its issuance.
    1. Any employer may apply to the commissioner for a temporary order granting a variance from a standard or any provision thereof promulgated under this section. Such temporary order shall be granted only if the employer files an application which meets the requirements of paragraph (b) of this subsection and establishes that: (2) (a) Any employer may apply to the commissioner for a temporary order granting a variance from a standard or any provision thereof promulgated under this section. Such temporary order shall be granted only if the employer files an application which meets the requirements of paragraph (b) of this subsection and establishes that:
      1. He or she is unable to comply with the standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard or because necessary construction or alteration of facilities cannot be completed by the effective date;
      2. He or she is taking all available steps to safeguard his or her employees against the hazards covered by the standard; and
      3. He or she has an effective program for coming into compliance with the standard as quickly as practicable.

        1. So long as the requirements of this subsection are met; and

        2. If an application for renewal is filed at least ninety (90) days prior to the expiration date of the order. No interim renewal of an order may remain in effect for longer than one hundred eighty (180) days.

    2. An application for a temporary order under this subsection shall contain:
      1. A specification of the standard or portion thereof from which the employer seeks a variance;
      2. A representation by the employer, supported by representations from qualified persons having firsthand knowledge of the facts represented, that he or she is unable to comply with the standard or portion thereof and a detailed statement of the reasons therefor;
      3. A statement of the steps he or she has taken and will take (with specific dates) to protect employees against the hazard covered by the standard;
      4. A statement of when he or she expects to be able to comply with the standard and what steps he or she has taken and what steps he or she will take (with dates specified) to come into compliance with the standard; and
      5. A certification that he or she has informed his or her employees of the application by giving a copy thereof to their authorized representative, posting a statement giving a summary of the application and specifying where a copy may be examined at the place or places where notices to employees are normally posted, and by other appropriate means. A description of how employees have been informed shall be contained in the certification. The information to employees shall also inform them of their right to petition the commissioner for a hearing.
    3. The commissioner is authorized to grant a variance from any standard or portion thereof whenever he or she determines that such variance is necessary to permit an employer to participate in an experiment approved by him or her designed to demonstrate or validate new and improved techniques to safeguard the health or safety of workers.

Any temporary order issued under this subsection shall prescribe the practices, means, methods, operations, and processes which the employer must adopt and use while the order is in effect and state in detail his or her program for coming into compliance with the standard. Such a temporary order may be granted only after notice to employees and an opportunity for a hearing; provided, that the commissioner may issue one (1) interim order to be effective until a decision is made on the basis of the hearing. No temporary order may be in effect for longer than the period needed by the employer to achieve compliance with the standard or one (1) year, whichever is shorter, except that such an order may be renewed not more than twice:

History. Enact. Acts 1974, ch. 311, § 2; 1984, ch. 414, § 20, effective July 13, 1984; 2010, ch. 24, § 1762, effective July 15, 2010.

338.160. Safe scaffolding required in cities of the first and second classes. [Repealed.]

Compiler’s Notes.

This section (2741k-3, 2741k-4, 2741k-8) was repealed by Acts 1972, ch. 251, § 22.

338.161. Statistical records — Posting of notices.

  1. The Department of Workplace Standards shall develop and maintain a program of collection, compilation, and analysis of occupational safety and health statistics. Each employer shall make, keep and preserve, and make available to the commissioner and the Secretary of the United States Department of Labor or the Secretary of the United States Department of Health and Human Resources, such records regarding his or her activities relating to this chapter as may be prescribed by regulation.
  2. The Department of Workplace Standards shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of their protection and obligations under this chapter.

History. Enact. Acts 1972, ch. 251, § 17; 1972 (1st Ex. Sess.), ch. 7, § 2; 1984, ch. 414, § 21, effective July 13, 1984; 2005, ch. 123, § 39, effective June 20, 2005; 2010, ch. 24, § 1763, effective July 15, 2010.

338.170. Inspectors of scaffolding in cities of the first and second classes. [Repealed.]

Compiler’s Notes.

This section (2741k-5, 2741k-7) was repealed by Acts 1972, ch. 251, § 22.

338.171. Confidentiality of trade secrets.

All information obtained by the commissioner in connection with any inspection or proceeding under this chapter which might reveal a trade secret shall be considered confidential except that such information may be disclosed to those persons concerned with carrying out this chapter or when relevant in any proceedings under this chapter. In any such proceedings, the commissioner, review commission or courts shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.

History. Enact. Acts 1972, ch. 251, § 18; 2010, ch. 24, § 1764, effective July 15, 2010.

338.180. Building inspection department and inspectors to formulate code—Adoption. [Repealed.]

Compiler’s Notes.

This section (2741k-6) was repealed by Acts 1972, ch. 251, § 22.

338.181. Powers of Department of Workplace Standards — Agreement with United States government.

The Department of Workplace Standards is empowered to administer the provisions of this chapter to employers, employees, and places of employment under the jurisdiction of the United States government pursuant to any agreement between the Commonwealth and the United States government. Pursuant to such agreement, the Department of Workplace Standards is empowered to make employer reports and data available to the United States government.

History. Enact. Acts 1972, ch. 251, § 20; 1984, ch. 414, § 22, effective July 13, 1984; 2005, ch. 123, § 40, effective June 20, 2005; 2010, ch. 24, § 1765, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

A & H Truck Line, Inc. v. Kentucky Occupational Safety & Health Review Com., 536 S.W.2d 315, 1976 Ky. LEXIS 70 ( Ky. 1976 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Leathers, Civil Procedure, 65 Ky. L.J. 437 (1976-77).

338.190. Duties of inspectors. [Repealed.]

Compiler’s Notes.

This section (2741k-7) was repealed by Acts 1972, ch. 251, § 22.

338.191. Civil and criminal actions for violations brought by Attorney General.

It shall be the duty of the Attorney General, upon request of the commissioner, to bring all necessary civil or criminal actions for violations of the provisions of this chapter and to obtain injunctions against any person violating or threatening to violate any provisions of this chapter. The Attorney General may appoint special counsel to prosecute these claims. In the event special counsel is secured, all costs will be borne by the Labor Cabinet.

History. Enact. Acts 1972, ch. 251, § 21; 1984, ch. 414, § 23, effective July 13, 1984; 2010, ch. 24, § 1766, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

A & H Truck Line, Inc. v. Kentucky Occupational Safety & Health Review Com., 536 S.W.2d 315, 1976 Ky. LEXIS 70 ( Ky. 1976 ).

338.195. Rebuttable presumption in asbestos cleanup lawsuits.

In any personal injury or property damage lawsuit arising from the cleanup of asbestos, the demonstration that acts or omissions of a party to the lawsuit during the party’s involvement in cleanup of asbestos were in accordance with generally accepted practice and state-of-the-art scientific knowledge and utilized the best technology reasonably available to the party at the time the asbestos cleanup was performed shall create a rebuttable legal presumption that the acts or omissions were not negligent.

History. Enact. Acts 1986, ch. 279, § 2, effective July 15, 1986.

Legislative Research Commission Note.

(1988). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 .

338.200. Cost of medical examination or furnishing of records, employee not to pay. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 55, § 1, 2) was repealed by Acts 1972, ch. 251, § 22.

338.201. Lien on property of employer who violates provisions of chapter — Recording of lien.

  1. A lien may be placed on all property, both real and personal, of an employer who has violated any requirement of this chapter, if the citation issued by the commissioner has been upheld by a final order of the review commission, but not before all administrative and judicial appeals have been exhausted. The lien shall be in favor of the Labor Cabinet and shall be an amount totaling the penalties due, together with interest at a rate of twelve percent (12%) per annum from the date the order of the review commission is final, but not before all administrative and judicial appeals have been exhausted. The lien shall be attached to all property and rights to property owned or subsequently acquired by the employer. The commissioner or the commissioner’s designee shall record the lien as provided in subsection (2) of this section. The lien shall show the date on which the citation was issued, the date of the violation, the name and last known address of the employer against whom the assessment was made, and the amount of penalties and interest. The lien shall be superior to the lien of any mortgage or encumbrance thereafter created and shall continue for ten (10) years from the time of the recording, unless sooner released or otherwise discharged.
  2. The lien shall be filed in any of the following offices in which the employer owns property or rights to property and any filing fees associated with filing the lien shall be pursuant to KRS 64.012 :
    1. The office of the county clerk of the county in which the defendant employer resides.
    2. The office of the county clerk of the county in which the defendant employer has its principal place of business.
    3. The office of the county clerk of any county in which the defendant employer has property or an interest in property.

History. Enact. Acts 1994, ch. 128, § 1, effective July 15, 1994; 2006, ch. 255, § 25, effective January 1, 2007; 2010, ch. 24, § 1767, effective July 15, 2010.

338.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (1599c-25, 2062f-6, 2741k-1 to 2741k-3, 4866b-7: amend. Acts 1950, ch. 55, § 3) was repealed by Acts 1972, ch. 251, § 22.

Legislative Research Commission Note.

This section was repealed by Acts 1972, ch. 251, § 22 and amended by Acts 1972, ch. 326. Since all statutes for which this section provided penalties were also repealed by Acts 1972, ch. 251, only the repealer has been given effect in this compilation.

338.991. Penalties.

  1. Any employer who willfully or repeatedly violates the requirement of any section of this chapter, including any standard, regulation, or order promulgated pursuant to this chapter, may be assessed a civil penalty of up to seventy thousand dollars ($70,000) for each violation, but not less than five thousand dollars ($5,000) for each willful violation.
  2. Any employer who has received a citation for a serious violation of the requirements of any section of this chapter, including any standard, regulation, or order promulgated pursuant to this chapter, shall be assessed a civil penalty of up to seven thousand dollars ($7,000) for each violation.
  3. Any employer who has received a citation for a violation of the requirements of any section of this chapter, including any standard, regulation, or order promulgated pursuant to this chapter, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to seven thousand dollars ($7,000) for each violation.
  4. Any employer who fails to correct a violation for which a citation has been issued within the period permitted for its correction may be assessed a civil penalty of up to seven thousand dollars ($7,000) for each day during which such failure or violation continues.
  5. Any employer found to be in violation of subsection (3) of KRS 338.121 shall be assessed a civil penalty of up to ten thousand dollars ($10,000) for each violation.
  6. The review commission shall have the authority to modify all civil penalties and fines provided for in this chapter. The review commission may, at its discretion, suspend the time period allotted for correction of a violation during the review of an appeal from the violation in question.
  7. All civil penalties and fines collected under the provision of this chapter shall be paid into the general fund.
  8. Any employer or individual who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this chapter shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000), or by imprisonment for not more than six (6) months, or by both.
  9. Any person who gives advance notice of any investigation or inspection to be conducted under this chapter, without authority from the commissioner, shall, upon conviction, be punished by a fine of not more than one thousand dollars ($1,000), or by imprisonment for not more than six (6) months, or by both.
  10. Any employer or individual who willfully causes bodily harm to any authorized representative of the commissioner while attempting to conduct an investigation or inspection under the provisions of this chapter, shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000), or by imprisonment for not more than one (1) year, or by both.
  11. As used in this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one (1) or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

History. Enact. Acts 1972, ch. 251, § 19; 1972 (1st Ex. Sess.), ch. 7, § 3; 1974, ch. 311, § 3; 1978, ch. 123, § 3, effective June 17, 1978; 1992, ch. 23, § 1, effective July 14, 1992; 2010, ch. 24, § 1768, effective July 15, 2010.

NOTES TO DECISIONS

1. Serious Violation.

Violation of safety regulations regarding fall protection equipment was properly found “serious” within meaning of Kentucky Occupational Safety and Health Act (KOSHA), where employer did not contest finding that workers were exposed without fall protection equipment, and it was substantially likely that a fall from the height of 42 feet would cause death or serious injury. DOL v. Morel Constr. Co., 359 S.W.3d 438, 443, 2011 Ky. App. LEXIS 56 (Ky. Ct. App. 2011).

To establish a prima facie case for either a serious, or “other than serious, Kentucky Occupational Safety and Health Act (KOSHA) violation under the special duty clause of KRS 338.031(1)(b), the Labor Cabinet bears the burden of proving, by a preponderance of the evidence, that (1) the cited standard applies to the facts; (2) the requirements of the standard were not met; (3) employees had access to the hazardous or violative condition (i.e., a violative or hazardous condition existed, and employees were exposed to it); and (4) the employer knew or could have known of the hazardous condition with the exercise of reasonable diligence. DOL v. Morel Constr. Co., 359 S.W.3d 438, 443, 2011 Ky. App. LEXIS 56 (Ky. Ct. App. 2011).

When an employer was cited for a workplace safety violation under 29 C.F.R. § 1926.955(c)(3), on electric conductors, error in finding the regulation preferred grounding over insulation did not require reversal because (1) the Kentucky Occupational Safety and Health Review Commission (Commission) knew the options, and (2) a distinction between the options was irrelevant to the Commission’s decision. Bowlin Group, LLC v. Sec'y of Labor, 437 S.W.3d 738, 2014 Ky. App. LEXIS 122 (Ky. Ct. App. 2014).

Employer’s employee-misconduct defense to a violation of 29 C.F.R. § 1926.955(c)(3), regarding electric conductors, failed because (1) the employer had no policy requiring the employee’s insulation, and (2) no overwhelming evidence required reversal of the Kentucky Occupational Safety and Health Review Commission’s decision. Bowlin Group, LLC v. Sec'y of Labor, 437 S.W.3d 738, 2014 Ky. App. LEXIS 122 (Ky. Ct. App. 2014).

Substantial evidence showed an employer’s violation of 29 C.F.R. § 1926.955(c)(3), on electric conductors, because the evidence showed (1) a tensioner truck was not grounded, (2) the employer had no specific policy requiring employee insulation while working on the ground, and (3) imputing a foreman’s lack of reasonable diligence to ensure an employee’s insulation to the employer resulted in the employer’s constructive knowledge of the violation. Bowlin Group, LLC v. Sec'y of Labor, 437 S.W.3d 738, 2014 Ky. App. LEXIS 122 (Ky. Ct. App. 2014).

CHAPTER 339 Child Labor

339.010. Limitation on employment of children. [Repealed.]

Compiler’s Notes.

This section (4434-4, 4434-19) was repealed by Acts 1948, ch. 107, § 26.

339.020. Work permits — Who entitled to. [Repealed.]

Compiler’s Notes.

This section (4434-4) was repealed by Acts 1948, ch. 107, § 26.

339.030. Work permits — Issuance. [Repealed.]

Compiler’s Notes.

This section (4434-4) was repealed by Acts 1948, ch. 107, § 26.

339.040. School requirements for holders of work permits. [Repealed.]

Compiler’s Notes.

This section (4434-4) was repealed by Acts 1948, ch. 107, § 26.

339.050. Certificate of age. [Repealed.]

Compiler’s Notes.

This section (331a-4) was repealed by Acts 1948, ch. 107, § 26.

339.060. Form, inspection and cancellation of permits and certificate of age. [Repealed.]

Compiler’s Notes.

This section (4434-4) was repealed by Acts 1948, ch. 107, § 26.

339.070. Duties of employers — When not liable. [Repealed.]

Compiler’s Notes.

This section (331a-4, 4434-4) was repealed by Acts 1948, ch. 107, § 26.

339.080. Report of school superintendents — Suspension and revocation of permits and certificates. [Repealed.]

Compiler’s Notes.

This section (331a-4) was repealed by Acts 1948, ch. 107, § 26.

339.090. Employer required to submit proof of child’s age. [Repealed.]

Compiler’s Notes.

This section (331a-2) was repealed by Acts 1948, ch. 107, § 26.

339.100. Performances in places of public amusement. [Repealed.]

Compiler’s Notes.

This section (331a-1) was repealed by Acts 1948, ch. 107, § 26.

339.110. Child under sixteen — Time and hours of labor — Employer to post notice. [Repealed.]

Compiler’s Notes.

This section (331a-7) was repealed by Acts 1948, ch. 107, § 26.

339.115. Partial suspension of KRS 339.110 as to Saturday hours during National Emergency. [Repealed.]

Compiler’s Notes.

This section (Acts 1944, ch. 123, § 1) was repealed by Acts 1948, ch. 107, § 26.

339.120. Child under sixteen not to do certain work. [Repealed.]

Compiler’s Notes.

This section (331a-9) was repealed by Acts 1948, ch. 107, § 26.

339.130. Machinery for instruction in schools permitted. [Repealed.]

Compiler’s Notes.

This section (331a-9) was repealed by Acts 1948, ch. 107, § 26.

339.140. Certain machinery to be safe-guarded — Child under eighteen not to clean moving machinery. [Repealed.]

Compiler’s Notes.

This section (331a-10) was repealed by Acts 1948, ch. 107, § 26.

339.150. Minor female not to stand constantly. [Repealed.]

Compiler’s Notes.

This section (331a-12) was repealed by Acts 1948, ch. 107, § 26.

339.160. Walls and ceilings to be lime-washed or painted. [Repealed.]

Compiler’s Notes.

This section (331a-13) was repealed by Acts 1948, ch. 107, § 26.

339.170. Hours of labor of messengers in first, second and third-class cities. [Repealed.]

Compiler’s Notes.

This section (331a-11) was repealed by Acts 1948, ch. 107, § 26.

339.180. Street occupations in first, second and third-class cities regulated. [Repealed.]

Compiler’s Notes.

This section (331a-15) was repealed by Acts 1948, ch. 107, § 26.

339.190. Law to be posted at places of work. [Repealed.]

Compiler’s Notes.

This section (331a-14) was repealed by Acts 1948, ch. 107, § 26.

339.200. Enforcement of chapter. [Repealed.]

Compiler’s Notes.

This section (331a-8, 1599c-15) was repealed by Acts 1948, ch. 107, § 26.

339.205. “Commissioner” defined.

As used in this chapter, “commissioner” shall mean the commissioner of the Department of Workplace Standards, under the direction and supervision of the secretary of the Labor Cabinet.

History. Enact. Acts 1984, ch. 414, § 24, effective July 13, 1984; 2010, ch. 24, § 1769, effective July 15, 2010.

339.210. Definition of “gainful occupation.”

As used in KRS 339.220 to 339.450 :

  1. “Gainful occupation” does not include employment in farm work or in domestic service in a private home, nor occasional employment by a householder in connection with the household and not in connection with the householder’s business or occupation, such as grass cutting or carrying ashes or similar casual domestic tasks, nor the delivery of newspapers on regularly scheduled routes, nor to employment as an actor or performer in motion pictures or theatrical productions, or in radio or television productions, nor to employment of minors by their own parents or persons standing in the place of a parent in occupations other than manufacturing, mining, or those found by the commissioner of the Department of Workplace Standards to be particularly hazardous; and
  2. “Gainful occupation” does not include a minor who is at least twelve (12) years of age working as a referee, umpire, or official in a youth athletic program, subject to the following:
    1. The minor is a referee, umpire, or official for an age bracket younger than the minor’s own age;
    2. An adult representing the youth athletic program is on the premises where the athletic event is occurring; and
    3. The minor has on file with the person responsible for assigning the minor to officiate for the youth athletic program the original or a copy of a written consent to the child’s employment as a referee, umpire, or official signed by the minor’s parent or guardian.

History. Enact. Acts 1948, ch. 107, § 1; 1984, ch. 256, § 1, effective July 13, 1984; 2005, ch. 123, § 41, effective June 20, 2005; 2010, ch. 24, § 1770, effective July 15, 2010; 2014, ch. 108, § 1, effective April 10, 2014.

NOTES TO DECISIONS

Cited:

Wright v. O’Neal, 320 S.W.2d 606, 1959 Ky. LEXIS 236 ( Ky. 1959 ).

Research References and Practice Aids

Cross-References.

Alcoholic beverage licensee not to employ person under 21, except in bottling house or office, KRS 244.090 .

Compulsory school attendance, KRS Chapter 159.

General Assembly to fix minimum age of employment in certain occupations, Ky. Const., § 243.

Workers’ compensation, minor of 16 is sui juris for purposes of; effect of age certificate on right to receive compensation, KRS 342.065 .

Kentucky Law Journal.

Segal, An Historical Analysis of the Kentucky Workmen’s Compensation Law, 47 Ky. L.J. 279 (1959).

Treatises

Petrilli, Kentucky Family Law, Minors, §§ 30.27, 30.29.

339.220. Minor under fourteen not to be employed — Exception.

No minor under fourteen (14) years of age shall be employed, permitted, or suffered to work in, about, or in connection with any gainful occupation at any time, except for employment in connection with an employment program supervised and sponsored by the school or school district such child attends, which program has been approved by the Department of Education and subject to the regulations of the commissioner of the Department of Workplace Standards.

History. Enact. Acts 1948, ch. 107, § 2; 1970, ch. 143, § 1; 1984, ch. 414, § 25, effective July 13, 1984; 2010, ch. 24, § 1771, effective July 15, 2010.

NOTES TO DECISIONS

1. Special Protection of Minors.

The Constitution, statute and case law of this state reflect a policy of special protection of minors from injury. Pike v. George, 434 S.W.2d 626, 1968 Ky. LEXIS 235 ( Ky. 1968 ).

Opinions of Attorney General.

If a golf club specifically employs caddies, provides specific space for their congregation on the premises of the club, regulates caddies’ hours of being on the premises, such as requiring them to attend at specific times, or engages in any activity which indicates such control over the caddie as to create a relationship of employment, even though the club does not directly pay the caddie, such caddie must not be below 14 years of age. However, if the club does not exercise any control over such persons and they come on the course as guests of members or golfers so as to demonstrate that no relationship of employment exists between the club and the caddies, the club would not be in violation of this section. OAG 69-101 .

Research References and Practice Aids

ALR

Lawn mowing by minors as violation of child labor statutes. 56 A.L.R.3d 1166.

Fair labor practices: Validity, construction, application, and effect of child labor provisions of Fair Labor Standards Act (29 USCS § 212 and related sections). 21 A.L.R. Fed. 391.

339.225. Minors eleven and over as golf caddies — Restrictions.

  1. The provisions of KRS 339.220 to the contrary notwithstanding, minors age eleven (11) years and over may be employed as caddies at golf courses subject to the following provisions:
    1. A “caddy” is an individual who offers his or her services to golfers at golf clubs both private and public. His or her duties during course of play include the carrying of golf clubs, direction to the golfer, assistance to the player in the general maintenance and upkeep of golf courses, including replacement of divots, repair of ball marks, raking of sand traps, location of golf balls and control of the pin. Duties normally referred to as “fore-caddying” or “shagging” of golf balls are not within the scope of this definition;
    2. No minor under eleven (11) years of age shall be employed, or suffered to work as a caddy for hire;
    3. Caddies under fourteen (14) years of age are restricted to caddying one (1) round of eighteen (18) holes in any one (1) day;
    4. Minors eleven (11) and twelve (12) years of age may not carry golf bags and are restricted to caddying with a “pull cart” only;
    5. Minors thirteen (13), fourteen (14), and fifteen (15) years of age may be employed to carry golf bags provided the bags do not exceed thirty-five (35) pounds in weight;
    6. No minor under sixteen (16) years of age shall be employed, permitted, or suffered to operate power-driven golf carts in the course of their employment, or any power-driven maintenance equipment; and
    7. All persons employing minors as caddies are subject to all provisions of this chapter and the regulations issued hereunder.
  2. The Department of Workplace Standards shall promulgate administrative regulations necessary to carry out the provisions of this section.

History. Enact. Acts 1970, ch. 193, §§ 1, 2; 1984, ch. 414, § 26, effective July 13, 1984; 2010, ch. 24, § 1772, effective July 15, 2010.

339.230. Restrictions on employment of minor between fourteen and eighteen.

A minor who has passed his or her fourteenth birthday but is under eighteen (18) years of age may be employed, permitted, or suffered to work in, about, or in connection with any gainful occupation, except:

  1. If he or she is under sixteen (16) years of age, he or she may not be employed during regular school hours, unless:
    1. The school authorities have made arrangements for him or her to attend school at other than the regular hours, in which event he or she may be employed subject to regulations of the commissioner of workplace standards during such of the regular school hours as he or she is not required to be in attendance under the arrangement; or
    2. He or she has graduated from high school.
  2. A minor who has passed his or her fourteenth birthday but is under eighteen (18) years of age, may not be employed, permitted, or suffered to work:
    1. In any place of employment or at any occupation, that the commissioner of workplace standards shall determine to be hazardous or injurious to the life, health, safety, or welfare of such minor unless:
      1. The minor is at least sixteen (16) years of age;
      2. The minor is employed by his or her parent or a person standing in place of a parent and works under adult supervision; and
      3. The minor is engaged in nonhazardous aspects of the electrical trades, including but not limited to activities such as pulling wire, setting boxes, or bending conduit;
    2. More than the number of days per week, nor more than the number of hours per day that the commissioner of workplace standards shall determine to be injurious to the life, health, safety, or welfare of such minor. The commissioner of workplace standards in promulgating these regulations may make them more restrictive than those promulgated by the United States Secretary of Labor under provisions of the Fair Labor Standards Act and its amendments, but in no event may he or she make them less restrictive;
    3. During the hours of the day that the commissioner of workplace standards shall determine to be injurious to the life, health, safety, or welfare of such minor. The commissioner of workplace standards in promulgating these regulations may make them more restrictive than those promulgated by the United States Secretary of Labor under provisions of the Fair Labor Standards Act and its amendments but in no event may he or she make them less restrictive; and
    4. In, about, or in connection with any establishment where alcoholic liquors are distilled, rectified, compounded, brewed, manufactured, bottled, sold for consumption, or dispensed unless permitted by the rules and regulations of the Alcoholic Beverage Control Board (except that he or she may be employed in places where the sale of alcoholic beverages by the package is merely incidental to the main business actually conducted); or in a pool or billiard room.
  3. The commissioner of workplace standards shall promulgate regulations to properly protect the life, health, safety, or welfare of minors. He or she may consider sex, age, premises of employment, substances to be worked with, machinery to be operated, number of hours, hours of the day, nature of the employment, and other pertinent factors. The commissioner of workplace standards in promulgating these regulations may make them more restrictive than those promulgated by the United States Secretary of Labor under provisions of the Fair Labor Standards Act and its amendments but in no event may he or she make them less restrictive, provided, however, these regulations shall have no effect on the definition of “gainful occupation” under KRS 339.210 . To advise the commissioner with respect to the regulations, the Governor shall appoint a committee of four (4) persons which shall consist of a representative from the Cabinet for Health and Family Services, the Department of Education, the Kentucky Commission on Human Rights and the Personnel Cabinet. The regulations promulgated in accordance with this section shall be reviewed by such committee whenever deemed necessary by the commissioner of workplace standards.

History. Enact. Acts 1948, ch. 107, § 3; 1950, ch. 105; 1952, ch. 178, § 1; 1970, ch. 143, § 2; 1974, ch. 74, Art. VI, § 94; 1984, ch. 256, § 2, effective July 13, 1984; 1984, ch. 414, § 27, effective July 13, 1984; 1998, ch. 154, § 93, effective July 15, 1998; 1998, ch. 426, § 561, effective July 15, 1998; 2005, ch. 99, § 609, effective June 20, 2005; 2010, ch. 24, § 1773, effective July 15, 2010; 2011, ch. 74, § 20, effective June 8, 2011.

NOTES TO DECISIONS

  1. Owner Not Employer.
  2. Service Station.
1. Owner Not Employer.

Where owner of filling station has nothing to do with the employment of an injured party by station lessee and is not shown to have knowledge of the employment, the owner is not liable under this section. Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ).

2. Service Station.

Under this section, a service station is not necessarily a hazardous place of employment. Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ).

Cited:

Riddell’s Adm’r v. Berry, 298 S.W.2d 1, 1956 Ky. LEXIS 31 ( Ky. 1956 ); Blue Ridge Mining Co. v. Dobson, 310 S.W.2d 52, 1958 Ky. LEXIS 371 ( Ky. 1958 ); Peters v. Frey, 429 S.W.2d 847, 1968 Ky. LEXIS 758 ( Ky. 1968 ).

Opinions of Attorney General.

A minor 18 or 19 years of age may be lawfully employed in a business establishment holding a restaurant license and a license for the sale of alcoholic beverages for consumption on the premises, provided, however, that the duties of such employee must be strictly confined to operation of the restaurant and no duties shall be performed by such an employee in connection with the handling, sale or serving of alcoholic beverages in such an establishment. OAG 62-172 .

Substantially all the operations of a county rescue squad composed of volunteers who assist in cases involving drownings, lost children, fires or any other type of emergency would be hazardous and the employment of anyone under age 18 would be proscribed. OAG 69-41 .

Research References and Practice Aids

Cross-References.

Alcoholic beverage licensee not to employ person under 21, except in bottling house or office, KRS 244.090 .

Safety and health of employees, KRS Chapter 338.

Treatises

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Injuries to Child — Parent’s Loss of Consortium, Form 256.02.

Collateral References.

ALR

Fair labor practices: Validity, construction, application, and effect of child labor provisions of Fair Labor Standards Act (29 USCS § 212 and related sections. 21 A.L.R. Fed. 391.

339.240. Minors between sixteen and eighteen, restrictions on employment of — Special restrictions for females. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 4; 1952, ch. 178, § 2) was repealed by Acts 1970, ch. 143, § 7.

339.250. Furnishing or selling articles to minors for illegal sale.

No person shall furnish or sell to any minor any article of any description with the knowledge that the minor intends to sell said article in violation of KRS 339.210 to 339.450 . No person shall continue to furnish or sell articles of any description to a minor after having received written notice from any officer charged with the enforcement of KRS 339.210 to 339.450 , that the minor is not permitted to sell such articles.

History. Enact. Acts 1948, ch. 107, § 5; 1984, ch. 256, § 3, effective July 13, 1984.

339.260. Hours of employment for minors. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 6; 1952, ch. 178, § 3) was repealed by Acts 1970, ch. 143, § 7.

339.270. Lunch and rest periods.

  1. No minor under eighteen (18) years of age shall be permitted to work for more than five (5) hours continuously without an interval of at least thirty (30) minutes for a lunch period, and no period of less than thirty (30) minutes shall be deemed to interrupt a continuous period of work.
  2. No employer shall require any minor under eighteen (18) years of age to work without a rest period of at least ten (10) minutes during each four (4) hours worked. This shall be in addition to the regularly scheduled lunch period. No reduction in compensation shall be made for hourly or salaried employees.

History. Enact. Acts 1948, ch. 107, § 7; 2020 ch. 48, § 2, effective March 27, 2020.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Injuries to Child — Parent’s Loss of Consortium, Form 256.02.

339.280. Employment certificates required. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 8; 1966, ch. 89, § 12) was repealed by Acts 1984, ch. 256, § 8.

339.290. Kinds of employment certificates — Special certificates for minors incapable of profiting from schooling. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 9; 1952, ch. 178, § 4; 1970, ch. 143, § 3) was repealed by Acts 1984, ch. 256, § 8.

339.300. Who to issue certificates — Rules as to form and conditions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 109; 1952, ch. 178, § 5) was repealed by Acts 1984, ch. 256, § 8.

339.310. Regulations for issuance of employment and age certificates — Furnishing of blank forms — Duplicates. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 11) was repealed by Acts 1984, ch. 256, § 8, effective July 13, 1984.

Legislative Research Commission Note.

This section was amended by 1984 Acts Ch. 414, § 28 and repealed by 1984 Acts Ch. 256, § 8. Pursuant to KRS 446.260 , the repeal prevails.

339.320. Denial of certificate. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 12; 1970, ch. 143, § 4) was repealed by Acts 1984, ch. 256, § 8, effective July 13, 1984.

339.330. Revocation or cancellation of certificate. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 13) was repealed by Acts 1984, ch. 256, § 8, effective July 13, 1984.

Legislative Research Commission Note.

This section was amended by 1984 Acts Ch. 414, § 29 and repealed by 1984 Acts Ch. 256, § 8. Pursuant to KRS 446.260 , the repeal prevails.

339.340. Application for certificate — What must contain — Evidence of age — Physical examination — School record. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 14; 1970, ch. 143, § 5; 1974, ch. 74, Art. VI, § 107(2)) was repealed by Acts 1984, ch. 256, § 8, effective July 13, 1984.

Legislative Research Commission Note.

This section was amended by 1984 Acts Ch. 414, § 30 and repealed by 1984 Acts Ch. 256, § 8. Pursuant to KRS 446.260 , the repeal prevails.

339.350. No fee for certificate — Contents of certificate — Issuance in triplicate. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 14; 1980, ch. 188, § 264, effective July 15, 1980) was repealed by Acts 1984, ch. 256, § 8, effective July 13, 1984.

Legislative Research Commission Note.

This section was amended by 1984 Acts Ch. 414, § 31 and repealed by 1984 Acts Ch. 256, § 8. Pursuant to KRS 446.260 , the repeal prevails.

339.360. Issuance of age certificates.

Upon request, it shall be the duty of the local board of education through its superintendent or other authorized agent to issue to any minor under the age of eighteen (18) years desiring to enter employment a certificate of age upon presentation of proof of age. Every employer shall be required to obtain from any employee proof of age that the employee is at least eighteen (18) years of age.

History. Enact. Acts 1948, ch. 107, § 15; 1984, ch. 256, § 4, effective July 13, 1984.

339.370. Age certificate as evidence of age in other proceedings.

A certificate of age duly issued shall be conclusive evidence of the age of the minor for whom issued in any proceeding involving the employment of the minor under the child labor or workers’ compensation law or any other labor law of the state, as to any act occurring subsequent to its issuance.

History. Enact. Acts 1948, ch. 107, § 16; 1984, ch. 256, § 5, effective July 13, 1984.

Research References and Practice Aids

Cross-References.

Effect of age certificate on right to recover worker’s compensation, KRS 342.065 .

339.380. Part-time schools. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, §§ 17, 18; 1970, ch. 143, § 6) was repealed by Acts 1984, ch. 256, § 8.

339.390. Duty of employer with respect to certificate — Certificate valid only for designated employment — Evidence of illegal employment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 18; 1966, ch. 89, § 13) was repealed by Acts 1984, ch. 256, § 8.

339.400. Employer’s register — Posting copy of law and working hours.

Every person employing minors under eighteen (18) years of age shall keep a separate register containing the names, ages, and addresses of such employees, and the time of commencing and stopping of work for each day, and the time of the beginning and ending of the daily meal period, and shall post and keep conspicuously posted in the establishment wherein any such minor is employed, permitted, or suffered to work, a printed abstract of KRS 339.210 to 339.450 , and a list of the occupations prohibited to such minors, together with a notice stating the working hours per day for each day in the week required of them. These records and files shall be open at all times to the inspection of the school directors of pupil personnel and probation officers, and representatives of the Labor Cabinet and Department of Education.

History. Enact. Acts 1948, ch. 107, § 19; 1966, ch. 89, § 14; 2010, ch. 24, § 1774, effective July 15, 2010.

339.410. Female employees not to be kept standing constantly. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 20) was repealed by Acts 1984, ch. 256, § 8, effective July 13, 1984.

339.420. Limewashing or painting walls and ceilings of workplaces. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 21) was repealed by Acts 1984, ch. 256, § 8.

339.430. Machinery used in school courses.

Nothing in KRS 339.210 to 339.450 shall prevent the use of suitable machinery for instruction in schools where the mechanical arts are taught in connection with and as part of the usual school curriculum. The use of such machinery in any public or private school shall be subject to the approval of the board of education of the district where the school is situated, and shall be subject to the general industrial safety standards as to supplying safeguards for the protection of those using such machinery.

History. Enact. Acts 1948, ch. 107, § 22.

339.440. Safeguards for machinery. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 23) was repealed by Acts 1984, ch. 256, § 8, effective July 13, 1984.

339.450. Enforcement of law — Right to enter and inspect premises and records.

  1. It shall be the duty of the Department of Workplace Standards and of the inspectors and agents of said department, with the assistance of the school directors of pupil personnel, police officers and juvenile session of District Court probation officers, to enforce the provisions of KRS 339.210 to 339.450 , to make complaints against persons violating the provisions of those sections, and to prosecute violations thereof. The Department of Workplace Standards, its inspectors and agents shall have authority to enter and inspect at any time any place or establishment covered by KRS 339.210 to 339.450 , and to have access to age certificates kept on file by the employer and such other records as may aid in the enforcement of KRS 339.210 to 339.450. School directors of pupil personnel are likewise empowered to visit and inspect places where minors may be employed, and shall report any cases of employment that they find in violation of KRS 339.210 to 339.450 to the Department of Workplace Standards.
  2. Any person authorized to enforce KRS 339.210 to 339.450 may require an employer of a minor for whom an age certificate is not on file either to furnish him or her within ten (10) days the evidence showing that the minor is at least eighteen (18) years of age or to cease to employ or permit or suffer such minor to work. Proof of the making of such demand and of failure to deliver such proof of age shall be prima facie evidence, in any prosecution brought for violation of KRS 339.210 to 339.450 , that such minor is under eighteen (18) years of age and is unlawfully employed.

History. Enact. Acts 1948, ch. 107, § 24; 1966, ch. 89, § 15; 1980, ch. 188, § 178, effective July 15, 1980; 1984, ch. 256, § 6, effective July 13, 1984; 1984, ch. 414, § 32, effective July 13, 1984; 2010, ch. 24, § 1775, effective July 15, 2010.

Research References and Practice Aids

Cross-References.

School attendance officers may investigate places where children are employed, KRS 159.130 .

339.460. Exemption of minors employed at least ninety days prior to June 17, 1948. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 107, § 28) was repealed by Acts 1966, ch. 255, § 283.

339.990. Penalties.

Anyone who employs or permits or suffers any minor to be employed or to work in violation of KRS 339.210 to 339.450 , or of any order or ruling issued under the provisions thereof, or obstructs the Department of Workplace Standards, its officers, or agents, or any other person authorized to inspect places of employment under KRS 339.210 to 339.450 , or anyone who, having under his or her control or custody any minor, permits or suffers him or her to be employed or to work in violation of KRS 339.210 to 339.450, or who sells to a minor any article with the knowledge that the minor intends to sell the article in violation of KRS 339.210 to 339.450, shall be assessed a civil penalty, in accordance with the provisions of KRS 336.985 , of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000). Every employer who continues to employ a minor in violation of KRS 339.210 to 339.450 after he has been notified by the Department of Workplace Standards, its officers or agents, shall be assessed a civil penalty, in accordance with the provisions of KRS 336.985 , of one hundred dollars ($100) for each day the violation continues and the employment of any minor in violation of KRS 339.210 to 339.450 shall with respect to each minor so employed constitute a separate and distinct offense.

History. Enact. Acts 1948, ch. 107, § 25; 1984, ch. 256, § 7, effective July 13, 1984; 1984, ch. 414, § 33, effective July 13, 1984; 1990, ch. 42, § 4, effective July 13, 1990; 2010, ch. 24, § 1776, effective July 15, 2010.

NOTES TO DECISIONS

1. Violation by One Parent.

Violation of Child Labor Law by one (1) parent does not bar recovery by other parent who was not guilty of similar violation. Kentucky Utilities Co. v. McCarty's Adm'r, 170 Ky. 543 , 186 S.W. 150, 1916 Ky. LEXIS 79 ( Ky. 1916 ).

Research References and Practice Aids

Cross-References.

Parent responsible for violation of school attendance law by child after notice of violation, KRS 159.180 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Injuries to Child — Parent’s Loss of Consortium, Form 256.02.

CHAPTER 340 Employment Agencies

340.010. Definitions. [Repealed.]

Compiler’s Notes.

This section (1599d: amend. Acts 1976, ch. 97, § 1; 1998, ch. 426, § 562, effective July 15, 1998) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.020. Permit to operate employment agency. [Repealed.]

Compiler’s Notes.

This section (1599d-1) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.030. Application for permit — Fees — Refusal or cancellation. [Repealed.]

Compiler’s Notes.

This section (1599d-2: amend. Acts 1976, ch. 97, § 2) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.040. Place of business to be stated in permit — Records and reports — Permit and law to be posted. [Repealed.]

Compiler’s Notes.

This section (1599d-3: amend. Acts 1976, ch. 97, § 3) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.043. Surety bond required — Action on bond. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 97, § 4) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.050. Restrictions on operation — Sample copy of contract forms to be filed. [Repealed.]

Compiler’s Notes.

This section (1599d-4: amend. Acts 1976, ch. 97, § 5) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.053. Restriction on fees and deposits — Prohibited operations — Advertising restrictions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 97, § 6) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.060. Agency to return consideration if employment not procured. [Repealed.]

Compiler’s Notes.

This section (1599d-5) was repealed by Acts 1976, ch. 97, § 10.

340.070. Enforcement of law — Inspections — Access to records — Administrative regulations — Hearings. [Repealed.]

Compiler’s Notes.

This section (1599c-17, 1599d-6: amend. Acts 1976, ch. 97, § 7; 1996, ch. 318, § 314, effective July 15, 1996; 1998, ch. 426, § 563, effective July 15, 1998) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.080. Free public employment offices. [Repealed.]

Compiler’s Notes.

This section (4748g-4) was repealed by Acts 1946, ch. 113, § 9.

340.090. Employment Service Commission — Membership — Appointment — Qualifications — Compensation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.100. Director of Employment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.110. Maintenance of free public employment offices — Acceptance of Wagner-Peyser Act. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.120. Duties of labor-management — Members of Employment Service Commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.130. Advisory committee. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.140. Duties of Employment Service Director. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.150. Employment Service Commission Administration Fund. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.160. Transfer of officers and employes in federal service — And properties in possession of Unemployment Compensation Commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 113) was repealed by Acts 1948, ch. 164, § 5.

340.170. Kentucky Employment Advisory Council — Membership — Meetings — Powers and duties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 97, § 8) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

340.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (1599d-8: amend. Acts 1976, ch. 97, § 9) was repealed by Acts 2000, ch. 236, § 1, effective July 14, 2000.

CHAPTER 341 Unemployment Compensation

Construction of Chapter

341.005. Definitions.

As used in this chapter, unless the context clearly requires otherwise:

  1. “Cabinet” means the Education and Workforce Development Cabinet;
  2. “Secretary” means the secretary of the Education and Workforce Development Cabinet or his or her duly authorized representative; and
  3. “Commission” means the unemployment insurance commission.

History. Enact. Acts 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, 95; 1996, ch. 271, § 13, effective July 15, 1996; 2006, ch. 211, § 132, effective July 12, 2006; 2009, ch. 11, § 69, effective June 25, 2009.

Opinions of Attorney General.

The board of directors of a sanitation district established pursuant to KRS Chapter 220, by virtue of their authority to fix the compensation of employees of the district, may elect to apply for unemployment compensation coverage under the provisions of this chapter and may make expenditures from funds of the district to cover employer contributions. OAG 67-386 .

The Council of State Governments, because of its organizational setup, its source of income, and its functions and objectives, falls within an exempt classification of the Kentucky Unemployment Insurance Law. OAG 69-49 .

Research References and Practice Aids

Cross-References.

Cabinet for Health and Family Services employees’ optional coverage, KRS 199.420 .

Retirement and other benefits, KRS Chapters 61, 95 and 161.

Worker’s compensation, KRS Chapter 342.

341.010. Commission. [Repealed.]

Compiler’s Notes.

This section (4748g-3) was repealed by Acts 1950, ch. 206, § 1.

341.020. Definitions for fund, state, contributions, and benefits.

As used in this chapter, unless the context clearly requires otherwise:

  1. “Fund” means the unemployment insurance fund established by KRS 341.490 , to which all contributions, and from which all benefits shall be paid;
  2. “State” includes, in addition to the states of the United States of America, the District of Columbia, Puerto Rico, the Dominion of Canada, and Virgin Islands;
  3. “Contributions” means the money payments, exclusive of interest and penalties, to the unemployment insurance fund required by this chapter and by any previous unemployment compensation law of this state; and
  4. “Benefits” means the money payments payable to a worker under this chapter and under any previous unemployment compensation law of this state with respect to his unemployment.

History. 4748g-3: amend. Acts 1950, ch. 206, § 1; 1958, ch. 4, § 1; 1970, ch. 92, § 89; 1978, ch. 389, § 2, effective July 1, 1978.

NOTES TO DECISIONS

1. Disposition of Payments.

All payments are placed in the trust fund and as such are transmitted to the treasurer of the United States, whereupon such fact is certified to the internal revenue collector and, upon certification, the three percent tax imposed by the federal government is credited with the amount collected and placed in the trust fund by the state authorities, and the collector of revenue for the United States collects the balance or three-tenths of one per cent only. Shaw v. Kentucky Unemployment Compensation Com., 297 Ky. 815 , 181 S.W.2d 697, 1944 Ky. LEXIS 838 ( Ky. 1944 ).

Cited:

Burch v. Taylor Drug Store, 965 S.W.2d 830, 1998 Ky. App. LEXIS 25 (Ky. Ct. App. 1998).

341.030. “Wages” defined — Impact of trust fund balance on taxable wage base amount.

  1. As used in this chapter, unless the context clearly requires otherwise, and except as provided in subsections (2) to (7) of this section, “wages” means all remuneration for services, including commissions, bonuses, and, except for services performed in agriculture and domestic employment, the cash value of all remuneration in any medium other than cash. The reasonable cash value of remuneration in any medium other than cash shall be estimated and determined in accordance with rules prescribed by the commission.
  2. Amounts paid to traveling salesmen or other workers as allowance or reimbursement for traveling or other expenses, incurred on the business of the employing unit, constitute wages only to the extent of the excess of the amounts over the expenses actually incurred and accounted for by the worker to his employer; provided, however, that the cash value of meals and lodging when furnished to the worker for the convenience of the employer shall not constitute wages.
  3. For purposes of this chapter, the term “wages” includes tips which are:
    1. Received while performing services which constitute employment;
    2. Included in a written statement furnished to the employer pursuant to Section 6053(a) of the Internal Revenue Code; and
    3. Shall be treated as having been paid by the employing unit.
  4. “Wages” does not include the amount of any payment made to, or on behalf of, a worker under a plan or system established by an employing unit that makes provision for its workers generally or for a class of its workers, including any amount paid by an employing unit for insurance or annuities, or into a fund, to provide for any such payment, on account of:
    1. Retirement;
    2. Sickness or accident disability but, in the case of payments made to an employee or any of his dependents, this subsection shall exclude from the term “wages” only payments which are received under a workers’ compensation law;
    3. Medical and hospitalization expenses in connection with accident or sickness disability; or
    4. Death, if the worker has not:
      1. The option to receive, instead of provision for the death benefit, any part of the payment, or if the death benefit is insured, any part of the premiums or contributions to premiums paid by his employing unit; and
      2. The right, under the provisions of the plan or system or policy of insurance providing for the death benefit, to assign the benefit, or to receive a cash consideration in lieu of it either upon his withdrawal from the plan or system providing for the benefit or upon termination of the plan or system or policy of insurance or of his employment with his employing unit.
  5. “Wages” does not include any payment on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability, made by an employer to, or on behalf of, an employee after the expiration of six (6) calendar months following the last calendar month in which the employee worked for the employer.
  6. “Wages” does not include the amount of any payment made by an employing unit without deduction from the remuneration of the worker of the tax imposed under Section 3101 of the Internal Revenue Code or any payment required from an employer under a state unemployment compensation law with respect to remuneration paid to an employee for domestic service in a private home of the employer or for agricultural labor.
    1. “Wages” does not, for the purposes of KRS 341.260 to 341.310 , include that part of remuneration which, after wages equal to eight thousand dollars ($8,000) have been paid in a calendar year to a worker by a subject employer or his predecessor with respect to covered employment during any calendar year, is paid to the worker by the subject employer during the calendar year unless that part of the wages is subject to a tax under a federal law, imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund. On January 1, 2012, the amount of eight thousand dollars ($8,000) in this subsection shall increase to nine thousand dollars ($9,000), which shall increase by an additional three hundred dollars ($300) on January 1 of each subsequent year, unless limited by paragraph (b) or (c) of this subsection, not to exceed twelve thousand dollars ($12,000). For the purpose of this subsection, the term “covered employment” shall include service constituting covered employment under any unemployment compensation law of another state. (7) (a) “Wages” does not, for the purposes of KRS 341.260 to 341.310 , include that part of remuneration which, after wages equal to eight thousand dollars ($8,000) have been paid in a calendar year to a worker by a subject employer or his predecessor with respect to covered employment during any calendar year, is paid to the worker by the subject employer during the calendar year unless that part of the wages is subject to a tax under a federal law, imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund. On January 1, 2012, the amount of eight thousand dollars ($8,000) in this subsection shall increase to nine thousand dollars ($9,000), which shall increase by an additional three hundred dollars ($300) on January 1 of each subsequent year, unless limited by paragraph (b) or (c) of this subsection, not to exceed twelve thousand dollars ($12,000). For the purpose of this subsection, the term “covered employment” shall include service constituting covered employment under any unemployment compensation law of another state.
    2. If the trust fund balance on September 30 of a calendar year equals or exceeds two hundred million dollars ($200,000,000), the taxable wage base amount in effect at that time shall not increase on January 1 of the next calendar year or on January 1 of subsequent calendar years, except as provided in paragraphs (c) and (e) of this subsection.
    3. If the trust fund balance on September 30 of a calendar year equals or exceeds two hundred million dollars ($200,000,000), but is twenty million dollars ($20,000,000) or less lower than the trust fund balance amount that would trigger in a lower schedule of contribution rates under KRS 341.270 , the taxable wage base shall increase by three hundred dollars ($300) on January 1 of the next calendar year and that taxable wage base amount shall be the taxable wage base amount in effect for subsequent calendar years, subject to the limitations in paragraph (d) of this subsection.
    4. The total number of years that the increase in the taxable wage base shall be prohibited or limited under paragraph (b) or (c) of this subsection shall not exceed the total number of years that contributing employers paid additional federal unemployment taxes because of a reduction in the credit against the federal unemployment tax established in 26 U.S.C. sec. 3302 beginning in 2011.
    5. If the taxable wage base on January 1 of the calendar year immediately following the last year the increase in the taxable wage base was prohibited or limited under this subsection is less than twelve thousand dollars ($12,000), the taxable wage base amount shall be increased by three hundred dollars ($300), and by an additional three hundred dollars ($300) on January 1 of each subsequent calendar year until the taxable wage base amount reaches twelve thousand dollars ($12,000).
    6. Notwithstanding paragraphs (b) and (c) of this subsection, if the trust fund balance is less than two hundred million dollars ($200,000,000) on September 30 of a calendar year, the suspension of the taxable wage base increase shall not occur.
    7. Notwithstanding any other provision of this subsection, any increase in the maximum weekly benefit rate which otherwise would have occurred except for the suspension of the taxable wage base increase shall be implemented in accordance with the provisions of this chapter.
    8. The provisions of this subsection shall apply unless the United States Department of Labor notifies the secretary that implementation of this subsection would result in decertification of Kentucky’s unemployment insurance program, impact any cap application, affect the receipt of emergency unemployment compensation funds, create an ineligibility for receipt of federal funds, or result in other penalties or sanctions under the Social Security Act or Federal Unemployment Tax Act, 26 U.S.C. secs. 3301 et seq.

History. 4748g-3: amend. Acts 1950, ch. 206, § 1; 1952, ch. 154, §§ 1 to 3; 1964, ch. 168, § 1; 1972, ch. 21, § 1; 1974, ch. 182, § 1; 1978, ch. 389, § 3, effective July 1, 1978; 1980, ch. 188, § 265, effective July 15, 1980; 1982, ch. 67, § 3, effective July 15, 1982; 1982, ch. 261, § 1, effective January 1, 1982; 1986, ch. 26, § 1, effective July 15, 1986; 1994, ch. 136, § 1, effective July 15, 1994; 1996, ch. 266, § 1, effective July 15, 1996; 2010 (1st Ex. Sess.), ch. 5, § 1, effective August 28, 2010; 2012, ch. 52, § 8, effective July 12, 2012.

Compiler’s Notes.

Section 3101 of the Internal Revenue Code, referred to in subsection (6), is compiled as 26 USCS § 3101.
Section 6053(a) of the Internal Revenue Code, referred to in subdivision (3)(b), is codified as 26 USCS § 6053(a).

NOTES TO DECISIONS

  1. Application.
  2. Impairment of Rights Under Contract.
  3. “Extended base period.”
1. Application.

The 1982 amendments to subsection (6) of this section and 341.270 made by Chapter 261 did not invalidate, release, or extinguish any contract executed by contractors prior to April 1, 1982, and was not unconstitutional as applied to such contracts. Adams v. Associated General Contractors, Inc., 656 S.W.2d 729, 1983 Ky. LEXIS 299 ( Ky. 1983 ).

2. Impairment of Rights Under Contract.

The amendments to subsection (6) of this section and 341.270 made by Acts 1982, ch. 261, which increased the wage base and tax rate payable by employers for purposes of unemployment insurance contributions, in no way impaired the rights and obligations under any contract. Adams v. Associated General Contractors, Inc., 656 S.W.2d 729, 1983 Ky. LEXIS 299 ( Ky. 1983 ).

3. “Extended base period.”

Commission properly applied KRS 341.090 in finding that the extended base period included only four calendar quarters that immediately preceded the base period in calculating a claimant’s unemployment benefits; there was no ambiguity in the language of § 341.090 that permitted a court to expand the meaning of “extended base period.” Ky. Unemployment Ins. Comm'n v. Hamilton, 364 S.W.3d 450, 2011 Ky. LEXIS 176 ( Ky. 2011 ).

Research References and Practice Aids

Kentucky Law Journal.

Goodlett, The Test of “Employment” Under the State Unemployment Compensation Acts, Typical Statutes and Their Interpretation, 29 Ky. L.J. 82 (1940).

ALR

Service charges, made by hotels or restaurants and later distributed to waiters or similar employes, as “wages” upon which federal or state unemployment taxes or contributions are required to be paid. 83 A.L.R.2d 1024.

341.040. Reserve account, reimbursing employer account, pooled account, and annual payroll.

As used in this chapter, unless the context clearly requires otherwise:

  1. “Reserve account” means a separate book account maintained by the cabinet for each subject contributing employer under KRS 341.530 and 341.540 . No amount shall be credited to any reserve account on any date which has not been actually received by the cabinet by that date, and no benefit amount shall be charged against any reserve account by any date for which a check has not been written and sent by that date;
  2. “Reimbursing employer account” means a separate book account maintained by the cabinet for each subject employer who elects to make payments in lieu of contributions pursuant to KRS 341.275 or 341.277 . No benefit amount shall be charged against any reimbursing employer account prior to the issuance of benefit checks against that account;
  3. “Pooled account” means a separate book account maintained by the cabinet under KRS 341.550 ;
  4. “Annual payroll” means the total amount of wages paid by a subject employer during a twelve (12)-consecutive-month period for covered employment.

History. 4748g-3: amend. Acts 1950, ch. 206, § 1; 1958, ch. 4, § 2; 1974, ch. 74, Art. VI, § 107(23); 1996, ch. 266, § 2, effective July 15, 1996.

NOTES TO DECISIONS

1. Crediting of Account.

A company must have its reserve account credited with the amount of unemployment benefits paid for the weeks for which the employes subsequently received vacation pay from the company in accordance with the union contract. Kentucky Unemployment Ins. Com. v. General Electric Co., 473 S.W.2d 808, 1971 Ky. LEXIS 160 ( Ky. 1971 ).

341.050. Covered employment.

  1. As used in this chapter, unless the context clearly requires otherwise and subject to the provisions of KRS 341.055 , “covered employment” means service, including service in interstate commerce, performed by:
    1. An individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee;
    2. An officer of a corporation;
    3. An individual who performs service for remuneration for any employing unit:
      1. As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages (other than milk), or laundry or dry-cleaning services, for his principal; or
      2. As a traveling or city salesman, other than as an agent-driver or commission-driver, engaged upon a full-time basis in the solicitation on behalf of, and the transmission to, his principal (except for side-line sales activities on behalf of some other person) of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations; provided, that for purposes of this paragraph, the term “covered employment” shall include services described in subparagraphs 1. and 2. above only if the contract of service contemplates that substantially all of the services are to be performed personally by such individual; such individual does not have a substantial investment in facilities used in connection with the performance of the services (other than in facilities for transportation); and the services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed;
    4. Except as provided in KRS 341.055 (4), an individual in the employ of this state or any of its instrumentalities or any political subdivision or municipality thereof or any of its instrumentalities or any instrumentality of more than one (1) of the foregoing or any instrumentality of any of the foregoing and one (1) or more other states or political subdivisions or municipalities, provided that such service is excluded from “employment” as defined in the Internal Revenue Code solely by reason of Section 3306(c)(7) of the code but only when such service is required to be “covered employment” under this chapter by reason of Section 3309 of the Internal Revenue Code, as amended, as a requirement of Section 3304 of that code, as amended, for approval of the state’s unemployment insurance law; or
    5. An individual in the employ of a religious, charitable, educational or other organization but only if the following conditions are met:
      1. The service is excluded from “employment” as defined in the Internal Revenue Code solely by reason of Section 3306(c)(8) of that code but only when such service is required to be “covered employment” under this chapter by reason of Section 3309 of the Internal Revenue Code, as amended, as a requirement of Section 3304 of that code, as amended, for approval of the state’s unemployment insurance law; and
      2. The organization had four (4) or more individuals in employment for some portion of a day in each of twenty (20) different weeks, whether or not such weeks were consecutive, within either the current or preceding calendar year, regardless of whether they were employed at the same moment of time; or
    6. An individual in the employ of an employing unit performing agricultural service, as defined in Section 3306(k) of the Internal Revenue Code, if either of the following conditions are met:
      1. The employing unit paid wages of twenty thousand dollars ($20,000) or more in a calendar quarter in either the current or preceding calendar year for service performed in agricultural labor; or
      2. The employing unit employed for some portion of a day in each of twenty (20) different calendar weeks, whether or not such weeks are consecutive, ten (10) or more workers (irrespective of whether the same workers were in employment in each of such weeks) performing service in agricultural labor; or
    7. An individual in the employ of an employing unit performing domestic service in a private home, a local college club, or a local chapter of a college fraternity or sorority if the employing unit paid wages of one thousand dollars ($1,000) or more in a calendar quarter in either the current or preceding calendar year for service performed in domestic employment; or
    8. An individual’s service described in paragraphs (e) or (f) or (g) of this subsection, has not ceased to be covered employment under paragraph (c) of subsection (3) of KRS 341.250 .
  2. The term “covered employment” shall include:
    1. An individual’s entire service, performed within, or both within and without, this state if the service is localized in this state. Service shall be deemed to be localized within a state if:
      1. The service is performed entirely within such state; or
      2. The service is performed both within and without such state but the service performed without such state is incidental to the individual’s service within the state; for example, is temporary or transitory in nature or consists of isolated transactions.
    2. An individual’s entire service, wherever performed within the United States, the Virgin Islands or Canada, if:
      1. Such service is not covered under the unemployment compensation law of any other state, the Virgin Islands or Canada; and
      2. The place from which the service is directed or controlled is in this state.
    3. The service of an individual who is a citizen of the United States, performed outside the United States (except in Canada), in the employ of an American employer (other than service which is deemed “covered employment” under the provisions of paragraphs (a) or (b) of this subsection or the parallel provisions of another state’s law), if:
      1. The employer’s principal place of business in the United States is located in this state; or
      2. The employer has no place of business in the United States, but
        1. The employer is an individual who is a resident of this state; or
        2. The employer is a corporation which is organized under the laws of this state; or
        3. The employer is a partnership or a trust and the number of the partners or trustees who are residents of this state is greater than the number who are residents of any one (1) other state; or
      3. None of the criteria of subparagraphs 1. and 2. of this paragraph is met but the employer has elected coverage in this state or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits, based on such service, under the law of this state.
      4. An “American employer,” for purposes of this paragraph, means:
        1. An individual who is a resident of the United States; or
        2. A partnership if two-thirds (2/3) or more of the partners are residents of the United States; or
        3. A trust, if all of the trustees are residents of the United States; or
        4. A corporation organized under the laws of the United States or of any state.
      5. The term “United States,” for the purposes of this subsection, includes the states, the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands.
    4. Service performed by an officer or member of the crew of an American vessel or American aircraft on or in connection with such vessel or such aircraft, if the operating office, from which the operations of such vessel operating on navigable waters within, or the operation of such aircraft within or the operations of such vessel or such aircraft, within or without, the United States are ordinarily and regularly supervised, managed, directed and controlled is within this state.
  3. Notwithstanding any other provisions of this section or any of the provisions of KRS 341.055 , the term “covered employment” shall also include service with respect to which a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund or which as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act is required to be covered under this chapter.
  4. For the purpose of this chapter, if the services performed during one-half (1/2) or more of any pay period by an individual for the employing unit employing him constitutes covered employment, all the services of such individual for such period shall be deemed to be covered employment; but if the services performed during more than one-half (1/2) of any such pay period by an individual for the employing unit employing him do not constitute covered employment, then none of the services of such individual for such period shall be deemed to be covered employment. As used in this subsection, the term “pay period” means a period (of not more than thirty-one (31) consecutive days) for which a payment for service is ordinarily made to the individual by the employing unit employing him. This subsection shall not be applicable with respect to services performed in a pay period by an individual for the employing unit employing him, when any of such service is excluded because it is subject to an unemployment insurance program established by an Act of Congress.

History. 4748g-3: amend. Acts 1948, ch. 216, § 1; 1950, ch. 206, § 1; 1958, ch. 4, § 3; 1962, ch. 207, § 1; 1972, ch. 21, § 2; 1978, ch. 389, § 4, effective July 1, 1978.

Compiler’s Notes.

Subdivision (1)(d) of this section became effective January 1, 1979.

Sections 3304, 3306 and 3309 of the Internal Revenue Code, referred to herein, are compiled as 26 USCS §§ 3304, 3306 and 3309, respectively.

NOTES TO DECISIONS

  1. Legal Relationship of Employer and Employee.
  2. Cemeteries.
  3. Location of Employment.
  4. Real Estate Salesmen.
  5. Guards.
  6. Beauty Operators.
  7. Taxicab Drivers.
  8. Independent Contractor.
  9. Part-time Employment.
  10. Newspaper Carriers.
  11. Evidence.
1. Legal Relationship of Employer and Employee.

“The legal relationship of employer and employee,” as used in defining “covered employment,” must be accorded its natural sense, and is synonymous with the legal concept of master and servant, and the employment referred to is no broader than the ordinary master and servant relationship. Barnes v. Indian Refining Co., 280 Ky. 811 , 134 S.W.2d 620, 1939 Ky. LEXIS 204 ( Ky. 1939 ).

The legal relation of employer and employee is essential to constitute “covered employment,” and it is assumed that the legislature used the terms in their ordinary sense. Commonwealth v. Potts, 295 Ky. 724 , 175 S.W.2d 515, 1943 Ky. LEXIS 346 ( Ky. 1943 ).

2. Cemeteries.

A public cemetery is not a public charity and a cemetery company is not a charitable corporation and therefore a cemetery company is not exempt from the unemployment compensation tax. Lexington Cemetery Co. v. Commonwealth, 297 Ky. 851 , 181 S.W.2d 699, 1944 Ky. LEXIS 839 ( Ky. 1944 ).

As the Kentucky Unemployment Compensation Law follows the federal Social Security Law closely in order to obtain federal aid, and the federal law showed a clear intent not to exempt cemeteries, it follows that Kentucky law likewise intended not to exempt cemeteries. Lexington Cemetery Co. v. Commonwealth, 297 Ky. 851 , 181 S.W.2d 699, 1944 Ky. LEXIS 839 ( Ky. 1944 ).

3. Location of Employment.

The chief criterion of coverage is the location of the employment and, where all the work is performed within this state, it is undoubtedly localized in this state and constitutes covered employment under this section; the fact that the employer’s place of business is located in another state is not material in determining whether the services performed for him are covered because, if the services rendered by an employee are localized in this state, there is no need for considering this factor. Commonwealth ex rel. Division of Unemployment Ins. v. Goheen, 372 S.W.2d 782, 1963 Ky. LEXIS 140 ( Ky. 1963 ).

4. Real Estate Salesmen.

Where real estate salesmen paid all of own expenses, set own hours, vacations, and methods of doing business and were paid by commissions on sales only, they were not employees of real estate broker for purposes of unemployment compensation act. Commonwealth ex rel. Division of Unemployment Ins. v. Kendall, 313 Ky. 735 , 233 S.W.2d 511, 1950 Ky. LEXIS 972 ( Ky. 1950 ).

5. Guards.

Guards furnished private property owners under contract with an agency furnishing the protection were covered employees under this section, although such guards were made special local police officers and paid as provided by KRS 61.360 . Commonwealth v. Potts, 295 Ky. 724 , 175 S.W.2d 515, 1943 Ky. LEXIS 346 ( Ky. 1943 ).

6. Beauty Operators.

Where beauty operators lease or rent booths in shop from owner who furnishes all supplies and equipment, and such operators and owner have agreement with regard to the time of opening of the shop and they advise him if they will be absent but otherwise set their own hours, and he does not supervise or control their actual work and may not discharge them except for misconduct, and there is a weekly settlement between them with the gross receipts being divided on a commission basis, the relationship is that of employer and employee making them covered employees under this section. Litteral v. Commonwealth, 312 Ky. 505 , 228 S.W.2d 37, 1950 Ky. LEXIS 686 ( Ky. 1950 ).

7. Taxicab Drivers.

Where appellant secured license to operate taxicabs, furnished all oil and gas, and provided public liability insurance for the cabs, the fact that appellant entered into a written contract with drivers whereby the cabs were leased to them for 12 hours each day and they furnished their own drivers’ licenses and paid 70% of their gross income, exclusive of tips, to appellant each day and agreed to operate the cab in a safe manner and use their best efforts to increase business did not change their status from that of employee to independent contractor. Radley v. Commonwealth, 297 Ky. 830 , 181 S.W.2d 417, 1944 Ky. LEXIS 819 ( Ky. 1944 ).

8. Independent Contractor.

Person operating oil bulk stations under consignment agreement with refining company was an independent contractor and therefore not subject to compensation act, where refining company had no right to control the details or methods of procedure, and contractor was free to manage his business as he saw fit. Barnes v. Indian Refining Co., 280 Ky. 811 , 134 S.W.2d 620, 1939 Ky. LEXIS 204 ( Ky. 1939 ).

The question of whether a relationship is that of servant or independent contractor is to some extent a matter of degree, but the chief criterion in all cases is the right to control methods of work rather than mere results. Barnes v. Indian Refining Co., 280 Ky. 811 , 134 S.W.2d 620, 1939 Ky. LEXIS 204 ( Ky. 1939 ).

9. Part-time Employment.

A person hired initially on a part-time basis who continues in some aspect of part-time employment can qualify for unemployment insurance benefits. Corbin Times-Tribune v. Kentucky Unemployment Ins. Com., 686 S.W.2d 821, 1985 Ky. App. LEXIS 728 (Ky. Ct. App. 1985).

10. Newspaper Carriers.

Newspaper carriers are employees for unemployment compensation purposes, and not independent contractors; the Kentucky Unemployment Insurance Commission correctly identified the factors for determining whether the carriers were employees or independent contractors. Ky. Unemployment Ins. Comm'n v. Landmark Cmty. Newspapers of Ky., 91 S.W.3d 575, 2002 Ky. LEXIS 243 ( Ky. 2002 ).

11. Evidence.

Trial court’s determination that substitute teachers were “noncovered employment,” categorically and as a matter of law pursuant to KRS 341.055(4)(e), was erroneous. To determine whether substitute teaching was “covered employment” as defined by KRS 341.050(1)(a) and the common law, evidence was required, which the referee did not elicit and which the parties were not provided a full opportunity to present, and, thus, ruling on the matter in the absence of a sufficiently developed record was erroneous. Ky. Unemployment Ins. Comm'n v. Boone County Bd. of Educ., 354 S.W.3d 605, 2011 Ky. App. LEXIS 219 (Ky. Ct. App. 2011).

Cited:

Kentucky Unemployment Ins. Com. v. Potts, 290 S.W.2d 38, 1956 Ky. LEXIS 306 ( Ky. 1956 ); Commonwealth ex rel. Division of Unemployment Ins. v. Stone, 297 S.W.2d 58, 1956 Ky. LEXIS 17 ( Ky. 1956 ); Kentucky Unemployment Ins. Com. v. Western & Southern Life Ins. Co., 357 S.W.2d 850, 1962 Ky. LEXIS 147 ( Ky. 1962 ).

Opinions of Attorney General.

If a hospital is a private corporation its employees would be covered by the Unemployment Compensation Law of Kentucky pursuant to this section and KRS 341.055 . OAG 72-588 .

Under this section and KRS 341.055 employees of a county hospital would not be subject to the Unemployment Compensation Law of Kentucky. OAG 72-588 .

It is the county government which is ultimately liable to pay the unemployment insurance contributions for all nonelective employees who perform services for the benefit of the county. OAG 79-433 .

For the purposes of obtaining employee fringe benefits, the county is responsible for paying on behalf of jail personnel, as county employees, social security payments (KRS Chapter 61), worker’s compensation premiums (KRS Chapter 342), unemployment insurance premiums (KRS Chapter 341) and medical insurance coverage (KRS Chapter 67). OAG 82-346 .

Research References and Practice Aids

Cross-References.

Cabinet for Health and Family Services, employees of, may be covered at election of secretary, KRS 199.420 .

Kentucky Law Journal.

Seitz, Independent Calling of Life Insurance Solicitor Under State Unemployment Compensation Acts, 29 Ky. L.J. 181 (1941).

Seitz, Rationale for Determining Newsboy and Life Insurance Solicitor Status Under Unemployment and Workmen’s Compensation Statutes, 33 Ky. L.J. 102 (1945).

ALR

When is a corporation, community chest, fund, foundation, or club “organized and operated exclusively” for charitable or other exempt purposes under Internal Revenue Code. 69 A.L.R.2d 871.

Insurance agents or salesmen as within coverage of social security or unemployment compensation acts. 39 A.L.R.3d 872.

Liability of political party or its subdivision for contributions under unemployment compensation acts. 43 A.L.R.3d 1351.

Part-time or intermittent workers as covered by or as eligible for benefits under state Unemployment Compensation Act. 95 A.L.R.3d 891.

Trucker as employee or independent contractor. 2 A.L.R.4th 1219.

341.055. Noncovered employment.

Unless the employing unit thereof has elected that the services become covered employment under the provisions of subsection (3) or (4) of KRS 341.250 , “covered employment” shall not include:

  1. Service performed in agricultural labor, as defined in Section 3306(k) of the Internal Revenue Code, but only if the service is not defined as “covered employment” in paragraphs (f) and (h) of subsection (1) of KRS 341.050 ; or agricultural service performed prior to January 1, 1980, by an individual who is an alien admitted to the United States to perform service in agricultural labor pursuant to Sections 214(c) and 101(a)(15)(H) of the Immigration and Nationality Act;
  2. Domestic service in a private home, a local college club, or local chapter of a college fraternity or sorority, but only if the service is not defined as “covered employment” in paragraphs (g) and (h) of subsection (1) of KRS 341.050 ;
  3. Service in the employ of an organization described in paragraph (e) of subsection (1) of KRS 341.050 , but only if the service is not defined as “covered employment” in paragraphs (e) and (h) of subsection (1) of KRS 341.050 ;
  4. Certain service performed in the employ of this state or any of its political subdivisions, municipalities, or instrumentalities thereof, but only if the service is performed by an individual in the exercise of his or her duties:
    1. As a public elected official;
    2. As a member of a legislative body of this state or a political subdivision thereof;
    3. As a member of the judiciary of this state or political subdivision thereof;
    4. As a member of the State National Guard or Air National Guard;
    5. As an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or similar emergency; or
    6. In a position which, under or pursuant to the state law is designated as a major nontenured policymaking or advisory position, or a policymaking or advisory position the performance of the duties of which ordinarily does not require more than eight (8) hours per week or by reason of service on any appointed state or local board or commission;
  5. Except as provided in paragraph (d) of subsection (1) of KRS 341.050 , service performed in the employ of any other state or any political subdivision thereof, or of the United States government or an instrumentality of the United States exempt by federal law from the contributions imposed by this chapter, except that to the extent that the Congress of the United States shall permit states to require instrumentalities of the United States to make payments into an unemployment fund under a state unemployment insurance law, all the provisions of this chapter shall be applicable to such instrumentalities, and to services performed for such instrumentalities, in the same manner, to the same extent and on the same terms as to all other employing units, individuals and services; provided that if this state shall not be certified for any year by the Secretary of Labor of the United States under Section 3304 of the Internal Revenue Code, the payments required of such instrumentalities, with respect to such year, shall be refunded from the fund in the same manner and within the same period as is provided in KRS 341.330 with respect to contributions erroneously collected;
  6. Service with respect to which unemployment compensation is payable under an unemployment compensation system established by an Act of Congress. The secretary may enter into agreements with the proper agencies under such Act of Congress to provide reciprocal treatment to workers who have, after acquiring potential rights to benefits under this chapter, acquired rights to unemployment compensation under such Act of Congress, or who have, after acquiring potential rights to unemployment compensation under such Act of Congress, acquired rights to benefits under this chapter;
  7. Service performed by a worker in the employ of his son, daughter, or spouse, and service performed by a child under the age of twenty-one (21) in the employ of his father or mother;
  8. Service performed in the employ of a foreign government, including service as a consular, or other officer or employee, or a nondiplomatic representative, or of an instrumentality wholly owned by a foreign government if:
    1. The service is of a character similar to that performed in foreign countries by employees of the United States government or of an instrumentality thereof; and
    2. The secretary finds that the United States Secretary of State has certified to the United States Secretary of the Treasury that the foreign government, with respect to whose instrumentality exemption is claimed, grants an equivalent exemption with respect to similar service performed in the foreign country by employees of the United States government and of instrumentalities thereof;
  9. Service performed as a student nurse in the employ of a hospital or a nurses’ training school by a worker who is enrolled and is regularly attending classes in a nurses’ training school chartered or approved pursuant to the laws of this state; and service performed as an intern in the employ of a hospital by a worker who has completed a four (4) years’ course in a medical school chartered or approved pursuant to the laws of this state;
  10. Service performed by a worker for an employing unit as an insurance agent or as an insurance solicitor, if all such service performed by such worker for such employing unit is performed for remuneration solely by way of commission;
  11. Service performed by a worker under the age of eighteen (18) in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution;
  12. Service not in the course of the employing unit’s trade or business performed in any calendar quarter by a worker, unless the cash remuneration paid for such service is fifty dollars ($50) or more and such service is performed by an individual who is regularly employed by such employing unit to perform such service. For the purpose of this subsection, an individual shall be deemed to be regularly employed by an employing unit during a calendar quarter only if:
    1. On each of some twenty-four (24) days during the quarter, the individual performs for such employing unit for some portion of the day service not in the course of the employing unit’s trade or business; or
    2. The individual was regularly employed, as determined under paragraph (a) of this subsection, by the employing unit in the performance of the service during the preceding calendar quarter;
  13. Service performed in any calendar quarter in the employ of any organization exempt from income tax under Section 501(a) of the Internal Revenue Code, other than an organization described in Section 401(a), or under Section 521 of the Internal Revenue Code, if the remuneration for the service is less than fifty dollars ($50);
  14. Service performed in the employ of an international organization;
  15. Service covered by an election, duly approved by the agency charged with the administration of any other state or federal employment security law, in accordance with an arrangement pursuant to KRS 341.145 during the effective period of the election;
  16. Service performed in the employ of a school, college, or university, if the service is performed:
    1. By a student who is enrolled and is regularly attending classes at the school, college or university; or
    2. By the spouse of such a student, if the spouse is advised, at the time the spouse commences to perform the service, that:
      1. The employment of the spouse to perform the service is provided under a program to provide financial assistance to the student by the school, college, or university; and
      2. The employment will not be covered by any program of unemployment insurance;
  17. Service performed by an individual who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on, as a student in a full-time program, taken for credit at such institution, which combines academic instruction with work experience, if the service is an integral part of such program, and such institution has so certified to the employer, except that this subsection shall not apply to service performed in a program established for or on behalf of an employer or group of employers;
  18. Service performed in the employ of a hospital, if the service is performed by a patient of the hospital, as defined in KRS 341.067 ;
  19. Service performed in the employ of a church or convention or association of churches, or an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches; or by a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by the order;
  20. Service defined in KRS 341.050(1)(d) and (e) performed for a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age, physical or mental deficiency, or injury, or providing remunerative work for individuals who, because of their impaired physical or mental capacity, cannot be readily absorbed in the competitive labor market by an individual receiving the rehabilitation or remunerative work; or as part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision thereof by an individual receiving the work relief or work training; or in a custodial or penal institution by an inmate of such institution; or
  21. Service performed by a direct seller as defined in Section 3508(b)(2) of the Internal Revenue Code of 1986.

History. Enact. Acts 1972, ch. 21, § 3; 1974, ch. 74, Art, VI, § 107(21); 1978, ch. 389, § 5, effective July 1, 1978; 1980, ch. 385, § 1, effective July 15, 1980; 1986, ch. 26, § 2, effective July 15, 1986; 1988, ch. 106, § 1, effective July 15, 1988; 1990, ch. 6, § 1, effective July 13, 1990; 2020 ch. 2, § 3, effective July 15, 2020.

Compiler’s Notes.

Sections 401, 501, 521, 3304, 3306 and 3309 of the Internal Revenue Code, referred to in this section, are compiled as 26 USCS §§ 401, 501, 521, 3304, 3306 and 3309, respectively. Sections 101(a)(15)(H) and 214(c) of the Immigration and Nationality Act, referred to in subsection (1), are compiled as 8 USCS §§ 1101(a)(15)(H) and 1184(c), respectively.

NOTES TO DECISIONS

  1. Construction.
  2. Job Duties.
1. Construction.

The Kentucky Unemployment Compensation law provides that the act shall be liberally construed to accomplish its purposes. Commonwealth, Dep't of Educ. v. Commonwealth, 798 S.W.2d 464, 1990 Ky. App. LEXIS 156 (Ky. Ct. App. 1990).

Trial court’s determination that substitute teachers were “noncovered employment,” categorically and as a matter of law pursuant to KRS 341.055(4)(e), was erroneous. To determine whether substitute teaching was “covered employment” as defined by KRS 341.050(1)(a) and the common law, evidence was required, which the referee did not elicit and which the parties were not provided a full opportunity to present, and, thus, ruling on the matter in the absence of a sufficiently developed record was erroneous. Ky. Unemployment Ins. Comm'n v. Boone County Bd. of Educ., 354 S.W.3d 605, 2011 Ky. App. LEXIS 219 (Ky. Ct. App. 2011).

Based upon the language of KRS 341.055 , and particularly the types of emergencies enumerated therein, it was plainly the general assembly’s intent to limit noncovered employment as that term is defined in KRS 341.055 (4)(e) to personnel which the State must engage following a large-scale disaster that impedes the essential functions of government. While a teacher’s absence may create an emergency of sorts for the school, it does not create the type of emergency contemplated by KRS 341.055(4)(e). Ky. Unemployment Ins. Comm'n v. Boone County Bd. of Educ., 354 S.W.3d 605, 2011 Ky. App. LEXIS 219 (Ky. Ct. App. 2011).

2. Job Duties.

With regard to deciding eligibility for unemployment compensation, such determinations should be made on a case-by-case basis, and with regard to evaluating covered employment under subdivision (4) of this section, the key consideration is whether the claimant’s job duties were major policymaking or advisory; the title or nonclassified status of a claimant’s position are not the primary considerations. Commonwealth, Dep't of Educ. v. Commonwealth, 798 S.W.2d 464, 1990 Ky. App. LEXIS 156 (Ky. Ct. App. 1990).

Where the evidence showed that although some unemployment compensation claimants had minor advisory duties, the bulk of their duties was administrative, the Unemployment Compensation Commission correctly considered the duties of each position on an individual basis in determining that none of the claimants were employed in major, nontenured policymaking or advisory positions as stated in this section; as a result, the Commission correctly found that each of the claimants was entitled to receive unemployment compensation. Commonwealth, Dep't of Educ. v. Commonwealth, 798 S.W.2d 464, 1990 Ky. App. LEXIS 156 (Ky. Ct. App. 1990).

Opinions of Attorney General.

In the absence of election on its part, a county hospital is not liable for unemployment compensation taxes or contributions under subdivision (3) (now subdivision (4)) of this section. OAG 74-768 .

Elementary and secondary school teachers are not eligible to receive unemployment benefits during the summer since no contribution for public school teachers is made to the fund by the state. OAG 75-219 .

The criteria for coverage by the unemployment compensation program is whether the employees, or their employers, or both parties, contributed to the fund under KRS 341.282 . OAG 75-219 .

Although CETA employees would usually be excluded from unemployment insurance benefits under subdivision (20) of this section, federal regulations relating to CETA require that such employees receive the same benefits as other employees working for an employer, and the “employer” for purposes of such benefits is the prime sponsor organization rather than the local unit of government or a private, nonprofit group. OAG 81-71 .

The employment of special sheriff’s deputies during emergencies is not “covered employment,” under subsections (4)(e) and former (g) and the fiscal court is not, therefore, responsible for unemployment insurance for such deputies. OAG 83-301 .

341.060. Employing unit.

  1. As used in this chapter, unless the context clearly requires otherwise, “employing unit” means any individual or type of organization, including any partnership, association, society, trust, estate, joint-stock company, corporation, insurance company, whether any of these are domestic or foreign, or the receiver, trustee in bankruptcy, trustee or the legal representative of a deceased person, or this state or any department, division, administrative unit, political subdivision or municipality thereof, which has or subsequent to January 1, 1936, had one (1) or more workers performing services for it within this state, or one (1) or more workers performing services for it in covered employment in any state, or any successor to any employing unit defined in this subsection.
  2. All workers performing service within this state for any employing unit which maintains two (2) or more separate establishments within this state shall be deemed to be employed by a single employing unit for all purposes of this chapter.
  3. For purposes of this chapter agricultural workers who are members of a crew furnished by a crew leader to perform agricultural labor for another person shall be deemed to be employed by such crew leader as the employing unit provided that:
    1. Such crew leader holds a valid certificate of registration under the Farm Labor Contractor Registration Act of 1963; or
    2. Substantially all the members of such crew operate or maintain tractors, mechanized harvesting or cropdusting equipment, or any other mechanized equipment, which is provided by such crew leader; and
    3. Such individual is not an employee of such other person within the meaning of paragraph (a).
  4. For purposes of this chapter, if an individual is furnished by a crew leader to perform agricultural labor for another person and who is not treated as an employee of such crew leader under subsection (3) such other person, and not the crew leader, shall be treated as the employing unit of such individual; and
    1. Such other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash remuneration paid to such individual by the crew leader (either on his behalf or on behalf of such other person) for the agricultural labor performed for such other person.
  5. For purposes of this section, the term “crew leader” means an individual who:
    1. Furnishes individuals to perform agricultural labor for any other person,
    2. Pays (either on his behalf or on behalf of such other person) the individuals so furnished by him for the agricultural labor performed by them, and
    3. Has not entered into a written agreement with such other person under which such individual is designated as an employee of such other person.

History. 4748g-3: amend. Acts 1950, ch. 206, § 1; 1978, ch. 389, § 6, effective July 1, 1978.

Compiler’s Notes.

The Farm Labor Contractor Registration Act of 1963 referred to in subdivision (3)(a) was formerly compiled at 7 USCS § 2041 to 2055. It was repealed by Act Jan. 14, 1983, P.L. 97-470, Title V, Part C, § 523, 96 Stat. 2600, effective 90 days after enactment on Jan. 14, 1983, as provided by § 524 of such Act, which appears as 29 USCS § 1801 note.

NOTES TO DECISIONS

Cited:

Barnes v. Indian Refining Co., 280 Ky. 811 , 134 S.W.2d 620, 1939 Ky. LEXIS 204 ( Ky. 1939 ); Fritz v. Commonwealth, 309 Ky. 637 , 218 S.W.2d 659, 1949 Ky. LEXIS 776 ( Ky. 1949 ); Ford Motor Co. v. Kentucky Unemployment Compensation Com., 243 S.W.2d 657, 1951 Ky. LEXIS 1148 ( Ky. 1951 ); Snook v. International Harvester Co., 276 S.W.2d 658, 1955 Ky. LEXIS 437 ( Ky. 1955 ); United States Steel Corp. v. Brown, 441 S.W.2d 405, 1969 Ky. LEXIS 313 ( Ky. 1969 ).

Opinions of Attorney General.

This section, KRS 341.069 and 341.070 read together make it clear that the county government and its instrumentalities are the “employing unit” or the “subject employer.” OAG 79-433 .

341.065. Exemption of nonprofit cemetery associations from covered employment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 115; 1958, ch. 4, § 4) was repealed by Acts 1972, ch. 21, § 39.

341.067. Hospitals and institutions of higher education.

As used in this chapter, unless the context clearly requires otherwise:

  1. “Hospital” means an institution which has been licensed, certified, or approved by the secretary for health and family services as a hospital;
  2. “Institution of higher education” means an educational institution which:
    1. Admits as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such a certificate;
    2. Is legally authorized in this state to provide a program of education beyond high school;
    3. Provides an educational program for which it awards a bachelor’s or higher degree, or provides a program which is acceptable for full credit toward such a degree, a program of postgraduate or postdoctoral studies, or a program of training to prepare students for gainful employment in a recognized occupation; and
    4. Is a public or other nonprofit institution;
  3. Notwithstanding any of the foregoing provisions of this section, all recognized colleges and universities in this state are institutions of higher education for purposes of this chapter; and
    1. “Educational institution,” including an institution of higher education as defined in subsection (2) of this section, means: (4) (a) “Educational institution,” including an institution of higher education as defined in subsection (2) of this section, means:
      1. A school in which participants, trainees, or students are offered an organized course of study or training designed to transfer to them knowledge, skills, information, doctrines, attitudes or abilities from, by, or under the guidance of an instructor or teacher;
      2. It is approved, licensed, or issued a permit to operate as a school by the State Department of Education or other government agency that is authorized within the state to approve, license, or issue a permit for the operation of a school; and
      3. The courses of study or training which it offers may be academic, technical, trade, or preparation for gainful employment in a recognized occupation.
    2. In any particular case, the question of whether or not an institution is an educational institution within the meaning of the criteria described above will depend on what that particular institution actually does.

History. Enact. Acts 1972, ch. 21, § 4; 1974, ch. 74, Art. VI, § 107(1); 1978, ch. 389, § 7, effective July 1, 1978; 1998, ch. 426, § 564, effective July 15, 1998; 2005, ch. 99, § 610, effective June 20, 2005.

Opinions of Attorney General.

Employees of institutions of higher education are included under coverage of the unemployment compensation program under this section. OAG 75-219 .

341.069. Governmental entity.

For the purpose of this chapter, a governmental entity is:

  1. The state government of the Commonwealth of Kentucky and its instrumentalities or a governmental unit thereof as provided for in KRS 341.060 ;
  2. A county government and its instrumentalities;
  3. A city or municipal government and its instrumentalities;
  4. A city-county urban (merged) government and its instrumentalities;
  5. A public school district and its instrumentalities;
  6. An independent governmental organization established pursuant to Kentucky Revised Statutes or by executive order of the Governor;
  7. A special district that is funded or partially funded by county government;
  8. A joint operation of two (2) or more of the units defined in subsections (1) through (7) above;
  9. A joint operation of one (1) or more of the units defined in subsections (1) through (8) above with another state or a political subdivision or instrumentality thereof;
  10. An employing unit which has service performed in covered employment pursuant to KRS 341.050(1)(d) which is not defined as a governmental entity in subsections (1) through (9) of this section is a governmental entity under this subsection.

History. Enact. Acts 1978, ch. 389, § 8, effective July 1, 1978; 1980, ch. 385, § 2, effective July 15, 1980.

Opinions of Attorney General.

KRS 341.060 , this section and KRS 341.070 read together make it clear that the county government and its instrumentalities are the “employing unit” or the “subject employer.” OAG 79-433 .

341.070. Subject employer.

As used in this chapter, unless the context clearly requires otherwise, “subject employer” means:

  1. Any employing unit which in any calendar quarter in either the current or preceding calendar year paid for service in covered employment wages of fifteen hundred dollars ($1,500) or more.
  2. Any employing unit which for some portion of a day in each of twenty (20) different calendar weeks, whether or not such weeks are consecutive, in either the current or the preceding calendar year, had in covered employment at least one (1) worker (irrespective of whether the same worker was in employment in each such day).
  3. Any employing unit for which service in covered employment, as defined in paragraph (d) of subsection (1) of KRS 341.050 , is performed.
  4. Any employing unit for which service in covered employment, as defined in paragraph (e) or (h) of subsection (1) of KRS 341.050 , is performed.
  5. Any employing unit for which service in covered employment, as defined in paragraph (f) or (h) of subsection (1) of KRS 341.050 , is performed.
  6. Any employing unit for which service in covered employment, as defined in paragraph (g) or (h) of subsection (1) of KRS 341.050 , is performed.
    1. Any employing unit that is the transferee  of all or part of an employing unit that is or has been a subject  employer at the time of the transfer; or. (7) (a) Any employing unit that is the transferee  of all or part of an employing unit that is or has been a subject  employer at the time of the transfer; or.
    2. Any employing unit that at the time of  acquisition of all or part of a trade or business of a subject employer  is not or has not previously been a subject employer.
  7. Any employing unit for which service is or was performed with respect to which such employing unit is liable for any federal tax against which credit may be taken for contributions required to be paid into a state unemployment fund; or which, as a condition for approval of this chapter for full tax credit against the tax imposed by the Federal Unemployment Tax Act, is required, pursuant to such act, to be a “subject employer” under this chapter.
  8. Any employing unit which has elected to become subject to this chapter, pursuant to subsection (3) of KRS 341.250 .
  9. For purposes of subsections (1) through (6) of this section, covered employment shall include service which would constitute covered employment but for the fact that such service is deemed to be performed entirely within another state pursuant to an election under an arrangement entered into (in accordance with KRS 341.145 ) by the secretary and an agency charged with the administration of any other state or federal unemployment compensation law.
  10. Any employing unit which, having become a subject employer under subsections (1) through (9) of this section, has not ceased to be a subject employer under KRS 341.250 .
  11. For purposes of subsections (2), (4), and (5) of this section, if any week includes both December 31 and January 1, the days of that week up to January 1 shall be deemed one (1) calendar week and the days beginning January 1 another week.
  12. Notwithstanding the provisions of this section or any other provision of this chapter, no employing unit shall be initially determined a subject employer on the basis of covered employment performed more than five (5) calendar years prior to the year in which such determination is made, unless the secretary can show that the records of such employment experience were fraudulently concealed or withheld for the purpose of escaping liability under this chapter.
    1. Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisee, neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purpose under this chapter. (14) (a) Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisee, neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purpose under this chapter.
    2. Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisor, neither a franchisor nor a franchisor’s employee shall be deemed to be an employee of the franchisee for any purpose under this chapter.
    3. For purposes of this subsection, “franchisee” and “franchisor” have the same meanings as in 16 C.F.R. sec. 436.1.

HISTORY: 4748g-3: amend. Acts 1948, ch. 216, § 2; 1950, ch. 206, § 1; 1958, ch. 4, § 5; 1960, ch. 111, § 1; 1972, ch. 21, § 5; 1974, ch. 74, Art. VI, § 107(21); 1978, ch. 389, § 9, effective July 1, 1978; 2017 ch. 24, § 3, effective June 29, 2017; 2017 ch. 133, § 1, effective June 29, 2017.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 24 and 133, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

  1. Termination of Liability.
  2. Classification.
  3. Real Estate Broker.
  4. Lessor.
  5. Successor Employer.
1. Termination of Liability.

If an employer once becomes subject to the Unemployment Compensation Act, he remains in this status until he takes an affirmative step to terminate his liability. Commonwealth ex rel. Unemployment Compensation Com. v. Fritz, 236 S.W.2d 262, 1950 Ky. LEXIS 1097 ( Ky. 1950 ).

2. Classification.

If a classification based on having more than a minimal number of employees validly may be used in subjecting employers to an unemployment compensation tax, it makes no difference for what reason exempted businesses happen to have less than the minimum number of employees. Washer One, Inc. v. Commonwealth, 482 S.W.2d 590, 1972 Ky. LEXIS 197 ( Ky. 1972 ).

3. Real Estate Broker.

Where real estate salesmen paid all of own expenses, set own hours, vacations and methods of doing business and were paid by commissions on sales only, they were not employees of real estate broker for purposes of Unemployment Compensation Act. Commonwealth ex rel. Division of Unemployment Ins. v. Kendall, 313 Ky. 735 , 233 S.W.2d 511, 1950 Ky. LEXIS 972 ( Ky. 1950 ).

4. Lessor.

Where lessor had some control over employees of lessee but lessee retained exclusive control over the employees in many respects and, for the purpose of payment of federal tax, the federal government held lessee responsible, lessee was responsible for unemployment insurance tax on its employees’ wages and lessor was not required to report or pay such taxes. Commonwealth ex rel. Unemployment Compensation Com. v. Kaufman Straus Co., 300 Ky. 1 , 187 S.W.2d 821, 1945 Ky. LEXIS 769 (Ky. Ct. App. 1945).

5. Successor Employer.

A finding that a corporation was a successor employer was error under circumstances in which the record was devoid of any evidence of a “connection, negotiation, or transaction” between the corporation and the predecessor company; the corporation’s president testified that his company had no connection with the predecessor and no conversation or negotiations ever occurred between them, nor was there any agreement, assignment of rights or liabilities, or transfer of assets between the two companies. Competitive Auto Ramp Servs. v. Ky. Unemployment Ins. Comm'n, 222 S.W.3d 249, 2007 Ky. App. LEXIS 114 (Ky. Ct. App. 2007).

Kentucky Unemployment Insurance Commission did not err in finding that the employer was a successor employer to the company, KRS 341.070(7) and 341.540(1), as there was substantial evidence that the company was a going concern when acquired and the employer continued to operate the company as the same type of business, 787 Ky. Admin. Regs. 1:300, § 1. Trillium Indus. v. Ky. Unemployment Ins. Comm'n, 314 S.W.3d 751, 2010 Ky. App. LEXIS 110 (Ky. Ct. App. 2010).

Kentucky Unemployment Insurance Commission erred in finding that eight employing bodies were successors-in-interest to the tax account and tax rate of the company, because 787 Ky. Admin. Regs. 1:300, § 2, did not provide that successorship could arise among more than two employing units, and the failure to perform separate analyses constituted manifest injustice, as it was in clear contravention of the mandates of 787 Ky. Admin. Regs. 1:300, § 2. Trading Post Mgmt. Co., LLC v. Ky. Unemployment Ins. Comm'n, 355 S.W.3d 451, 2011 Ky. App. LEXIS 212 (Ky. Ct. App. 2011).

Cited:

Barnes v. Indian Refining Co., 280 Ky. 811 , 134 S.W.2d 620, 1939 Ky. LEXIS 204 ( Ky. 1939 ); Fritz v. Commonwealth, 309 Ky. 637 , 218 S.W.2d 659, 1949 Ky. LEXIS 776 ( Ky. 1949 ); Commonwealth ex rel. Division of Unemployment Ins. v. Stone, 297 S.W.2d 58, 1956 Ky. LEXIS 17 ( Ky. 1956 ).

Opinions of Attorney General.

It is the county government which is ultimately liable to pay the unemployment insurance contributions for all nonelective employees who perform services for the benefit of the county. OAG 79-433 .

KRS 341.060 , 341.069 and this section read together make it clear that the county government and its instrumentalities are the “employing unit” or the “subject employer.” OAG 79-433 .

341.080. “Calendar year,” “calendar quarter,” “week,” and “week of unemployment” defined.

As used in this chapter, unless the context clearly requires otherwise:

  1. Except in so far as the Education and Workforce Development Cabinet by regulation prescribes the equivalent thereof to meet particular conditions:
    1. “Calendar year” means a year beginning on January 1; and
    2. “Calendar quarter” means three (3) consecutive months beginning on January 1, April 1, July 1, or October 1;
  2. “Week” means such period of seven (7) consecutive calendar days as the Education and Workforce Development Cabinet regulation prescribes; and
  3. “Week of unemployment” means any period of seven (7) consecutive days, as prescribed by the Education and Workforce Development Cabinet in administrative regulations, during which a worker performed less than full-time work and earned less than an amount equal to one and one-fourth (1-1/4) times the benefit rate determined for him in accordance with the provisions of subsection (2) of KRS 341.380 .

History. 4748g-3: amend. Acts 1942, ch. 20, §§ 1, 7; 1950, ch. 206, § 1; 1972, ch. 21, § 6; 1974, ch. 74, Art. VI, § 107(24); 1996, ch. 271, § 14, effective July 15, 1996; 1998, ch. 426, § 565, effective July 15, 1998; 2006, ch. 211, § 133, effective July 12, 2006; 2009, ch. 11, § 70, effective June 25, 2009.

NOTES TO DECISIONS

  1. Week of Unemployment.
  2. Involuntary Termination.
  3. Part-Time Employee.
1. Week of Unemployment.

Determination of the question of whether a week is in fact one of unemployment can be deferred until the controlling event have occurred where an additional week of vacation pay could be accrued which would eliminate the right to unemployment benefits for that week. Kentucky Unemployment Ins. Com. v. General Electric Co., 473 S.W.2d 808, 1971 Ky. LEXIS 160 ( Ky. 1971 ).

One of the requisites for an employee to receive unemployment benefits is whether the employee earned less than the benefit rate determined for during the “weeks of unemployment” for which benefits are paid, where his union contract provides that an employee will receive accrued vacation pay during a company shutdown. Kentucky Unemployment Ins. Com. v. General Electric Co., 473 S.W.2d 808, 1971 Ky. LEXIS 160 ( Ky. 1971 ).

A one-week shutdown of plant pursuant to a collective bargaining agreement was a period of “unemployment” with respect to employees who were not entitled to vacation pay. Murray Operation of Tappan Co. v. Kentucky Unemployment Ins. Com., 583 S.W.2d 100, 1979 Ky. App. LEXIS 426 (Ky. Ct. App. 1979).

Weeks in which terminated employees received termination pay and vacation pay under the terms of a collective bargaining agreement were weeks of unemployment within the meaning of subsection (3) of this section. South Cent. Bell Tel. Co. v. Evans, 681 S.W.2d 433, 1984 Ky. App. LEXIS 536 (Ky. Ct. App. 1984).

2. Involuntary Termination.

Employees’ acceptance of benefits under termination plans did not constitute a “voluntary quit,” where the plans could have been imposed regardless of acceptance by the employees, who were displaced because of “technological advancements” and were slated for termination in any case. South Cent. Bell Tel. Co. v. Evans, 681 S.W.2d 433, 1984 Ky. App. LEXIS 536 (Ky. Ct. App. 1984).

3. Part-Time Employee.

A person hired initially on a part-time basis who continues in some aspect of part-time employment can qualify for unemployment insurance benefits. Corbin Times-Tribune v. Kentucky Unemployment Ins. Com., 686 S.W.2d 821, 1985 Ky. App. LEXIS 728 (Ky. Ct. App. 1985).

341.090. Base period, extended base period, benefit year, and base-period wages.

As used in this chapter, unless the context clearly requires otherwise:

  1. “Base period” means the first four (4) of the last five (5) completed calendar quarters immediately preceding the first day of a worker’s benefit year. However, if an individual lacks sufficient base-period wages because of a job-related injury, and he has received or was eligible to receive workers’ compensation, upon written application by the claimant an extended base period will be substituted for the current base period on a quarter-by-quarter basis as needed to establish a valid claim or to increase the benefit rate of a claim if:
    1. The individual did not earn wages because of a job-related injury for at least seven (7) weeks of each base period quarter to be substituted by an extended base period quarter;
    2. No later than one (1) month prior to the expiration of workers’ compensation benefits, the employer or carrier shall inform, orally and in writing, all recipients of their potential eligibility for unemployment insurance, and also provide a statement verifying the individual’s eligibility for workers’ compensation; and
    3. A claim for unemployment insurance compensation is filed no later than the fourth week of unemployment after the end of the period of injury compensated or eligible to be compensated by workers’ compensation;
  2. “Extended base period” means the four (4) quarters prior to the claimant’s base period. These four (4) quarters may be substituted for base-period quarters on a quarter-for-quarter basis in order to establish a valid claim or increase the benefit rate of a valid claim regardless of whether the wages have been used to establish a prior claim, except wages transferred to or from another state under a combined wage agreement will be excluded if used in a prior claim. Benefits paid on the basis of an extended base period, which would not otherwise be payable, shall be charged to the pooled account if the chargeable employer is a contributing employer. If the chargeable employer is a reimbursing employer, benefits shall be billed to his reimbursing account;
  3. “Benefit year” for any worker means the fifty-two (52) week period beginning with the first day of the week with respect to which he first requests a determination which establishes his status as a fully insured worker after the termination of his last preceding benefit year, if any, except that the last preceding benefit year shall be a fifty-three (53) week period if fifty-two (52) weeks would result in the overlapping of any calendar quarter of the base period of the new benefit year with the same calendar quarter of the base period of the previous benefit year. As used in this subsection, a worker shall be considered as having insured status, without regard to any other provision of this chapter, if at the time of his request he has satisfied the conditions required under KRS 341.350(6); and
  4. “Base-period wages” means the wages paid to a worker during his base period by subject employers for covered employment. The secretary, upon request of the employee, with respect to this subsection, shall consider wages payable to mean wages paid in order to prevent inequities caused by employer failure to meet a regularly scheduled payday. Lump-sum payments deemed to be wages under this chapter shall be reallocated to periods covered by the payments.

History. 4748g-3: amend. Acts 1942, ch. 19, §§ 1, 10; 1948, ch. 216, § 3; 1950, ch. 206, § 1; 1952, ch. 154, § 4; 1972, ch. 21, § 7; 1974, ch. 74, Art. VI, § 107(21); 1976, ch. 92, § 1; 1990, ch. 6, § 2, effective July 13, 1990; 1990, ch. 133, § 1, effective July 13, 1990; 1992, ch. 133, § 1, effective July 14, 1992; 1996, ch. 266, § 3, effective July 15, 1996; 2010 (1st Ex. Sess.), ch. 5, § 2, effective August 28, 2010.

NOTES TO DECISIONS

1. “Extended base period.”

Commission properly applied KRS 341.090 in finding that the extended base period included only four calendar quarters that immediately preceded the base period in calculating a claimant’s unemployment benefits; there was no ambiguity in the language of § 341.090 that permitted a court to expand the meaning of “extended base period.” Ky. Unemployment Ins. Comm'n v. Hamilton, 364 S.W.3d 450, 2011 Ky. LEXIS 176 ( Ky. 2011 ).

Cited:

Bowman v. Stumbo, 735 F.2d 192, 1984 U.S. App. LEXIS 22159 (6th Cir. 1984).

341.092. Previously uncovered services.

  1. For the purpose of this chapter, “previously uncovered wages” means wages paid to a worker during his base-period for service performed prior to January 1, 1978, which is defined in Section 121 of the Unemployment Compensation Amendments of 1976, Public Law 94-566, as “previously uncovered services.”
  2. Benefit payments attributable to wages for previously uncovered services shall not be chargeable to contributory employer reserve accounts, or to the pool account or to reimbursing employer accounts for payments in lieu of contributions under this chapter to the extent that such benefit payments are reimbursable under provisions of federal law.

History. Enact. Acts 1978, ch. 389, § 10, effective January 1, 1978; 1980, ch. 188, § 266, effective July 15, 1980; 1996, ch. 266, § 4, effective July 15, 1996.

Compiler’s Notes.

Section 121 of Public Law 94-566, referred to in subsection (1), appears as a note to 26 USCS § 3304.

341.094. Extended benefit period — State “on” and “off ” indicators — Triggers.

As used in this chapter, unless the context clearly requires otherwise:

  1. “Extended benefit period” means a period which:
    1. Begins with the third week after a week for which there is a state “on” indicator; and
    2. Ends with either of the following weeks, whichever occurs later:
      1. The third week after the first week for which there is a state “off” indicator; or
      2. The thirteenth consecutive week of such period; provided, that no extended benefit period may begin by reason of a state “on” indicator before the fourteenth week following the end of a prior extended benefit period which was in effect with respect to this state.
  2. There is a “state ‘on’ indicator” for this state for a week if the secretary determines, in accordance with the regulations of the United States Secretary of Labor, that for the period consisting of such week and the immediately preceding twelve (12) weeks, the rate of insured unemployment (not seasonally adjusted) under this chapter:
    1. Equaled or exceeded one hundred twenty percent (120%) of the average of such rates for the corresponding 13-week period ending in each of the preceding two (2) calendar years, and
    2. Equaled or exceeded five percent (5%).
  3. Notwithstanding subsection (2) of this section, there is a “state ‘on’ indicator” for this state with respect to weeks of unemployment until the week ending four (4) weeks prior to the last week of unemployment for which one hundred percent (100%) federal sharing is available under Section 2005(a) of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. No. 111-5, or a similar provision in effect, without regard to the extension of federal sharing for certain claims as provided under Section 2005(c) of ARRA if:
    1. The average rate of total unemployment (seasonally adjusted), as determined by the United States Secretary of Labor, for the period consisting of the most recent three (3) months for which data for all states are published before the close of such week equals or exceeds six and one-half percent (6.5%); and
    2. The average rate of total unemployment in this state (seasonally adjusted), as determined by the United States Secretary of Labor, for the three (3) month period referred to in paragraph (a) of this subsection equals or exceeds one hundred ten percent (110%) of such average for either or both of the corresponding three (3) month periods ending in the preceding two (2) calendar years.
  4. There is a “state ‘off’ indicator” for this state for a week if, for the period consisting of such week and the immediately preceding twelve (12) weeks, paragraph (a) or (b) of subsection (2) of this section or subsection (3) of this section was not satisfied.

History. Enact. Acts 1972, ch. 21, § 8; 1974, ch. 74, Art. VI, § 107(21); 1978, ch. 389, § 11, effective January 1, 1978; 1982, ch. 67, § 4, effective September 26, 1982; 2010, ch. 99, § 1, effective July 15, 2010.

Compiler’s Notes.

Section 2005(a) of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. No. 111-5, referred to in this section may be found as a note to 26 USCS § 3304.

Research References and Practice Aids

2010-2012 Budget Reference.

See State/Executive Branch Budget, 2010 (1st Extra. Sess.) Ky. Acts ch. 1, Pt. I, D, 7, (2) at 26.

341.096. Rate of insured unemployment — Regular, extended and additional benefits — Eligibility period — Exhaustee.

As used in this chapter, unless the context clearly requires otherwise:

  1. “Rate of insured unemployment” means the percentage derived by dividing:
    1. The weekly average number of weeks claimed in claims filed for regular benefits (not seasonally adjusted) in this state for weeks of unemployment with respect to the most recent 13-consecutive-week period, as determined by the secretary on the basis of his report to the United States Secretary of Labor; by
    2. The average monthly employment covered under this chapter for the first four (4) of the most recent six (6) completed calendar quarters ending before the end of such thirteen (13) week period. Such computations shall be made by the secretary, in accordance with regulations prescribed by the United States Secretary of Labor;
  2. “Regular benefits” means benefits payable to a worker under this chapter or under an unemployment compensation law of any other state (including benefits payable to federal civilian employees and to ex-servicemen pursuant to 5 U.S.C. ch. 85) other than extended benefits and additional benefits;
  3. “Extended benefits” means benefits (including benefits payable to federal civilian employees and to ex-servicemen pursuant to 5 U.S.C. ch. 85) payable to a worker under the provisions of KRS 341.700 to 341.740 for weeks of unemployment in his eligibility period;
  4. “Additional benefits” means benefits payable to exhaustees by reason of conditions of high unemployment or by reason of other special factors under the provisions of any state law;
  5. “Eligibility period” of a worker means the period consisting of the weeks in his benefit year which begin in an extended benefit period and, if his benefit year ends within such extended benefit period, any weeks thereafter which begin in such period; and
  6. “Exhaustee” means a worker who, with respect to any week of unemployment in his eligibility period:
    1. Has received, prior to such week, all of the regular benefits that were available to him under this chapter or any other state law (including dependents’ allowances and benefits payable to federal civilian employees and ex-servicemen under 5 U.S.C. ch. 85) in his current benefit year that includes such week; provided, that, for the purposes of this paragraph, an individual shall be deemed to have received all of the regular benefits that were available to him although, as a result of a pending appeal with respect to wages and/or employment that were not considered in the original monetary determination in his benefit year, he may subsequently be determined to be entitled to added regular benefits; or
    2. His benefit year having expired prior to such week, has no, or insufficient, wages and/or employment on the basis of which he could establish a new benefit year that would include such week; and
    3. Has no right to unemployment benefits or allowances, as the case may be, under the Railroad Unemployment Insurance Act or under such other federal laws as are specified in regulations issued by the United States Secretary of Labor; and has not received and is not seeking unemployment benefits under the unemployment compensation law of Canada; but if the individual is seeking such benefits and the appropriate agency finally determines that the individual is not entitled to benefits under such law, the individual shall be considered an exhaustee if the other provisions of this definition are met.

History. Enact. Acts 1972, ch. 21, § 9; 1974, ch. 62, § 1; 1974, ch. 74, Art. VI, § 107(2); 1978, ch. 389, § 1, effective July 1, 1978; 1980, ch. 385, § 3, effective July 15, 1980; 1982, ch. 67, § 5, effective July 15, 1982; 2010 (1st Ex. Sess.), ch. 5, § 3, effective August 28, 2010.

Compiler’s Notes.

The Railroad Unemployment Insurance Act, referred to subsection (6)(c), is compiled as 45 USCS § 351 et seq.

Research References and Practice Aids

2010-2012 Budget Reference.

See State/Executive Branch Budget, 2010 (1st Extra. Sess.) Ky. Acts ch. 1, Pt. I, D, 7, (2) at 26.

341.100. Suitable work.

  1. In determining for any purpose under this chapter whether or not any work is suitable for a worker the secretary shall consider, among other pertinent conditions, the degree of risk involved to his health, safety and morals; his physical fitness and prior training; his experience and prior earnings; his length of unemployment and prospects for securing local work in his customary occupation; and the distance of the available work from his residence.
  2. For the purpose of this chapter, no work shall be suitable nor shall benefits be denied under this chapter to any otherwise eligible worker for refusing to accept new work or new conditions of work under one (1) or more of the following:
    1. If the position offered is vacant due directly to a strike, lock-out or other labor dispute;
    2. If the wages, hours, or other conditions of the work offered are substantially less favorable than those prevailing for similar work in the locality;
    3. If, as a condition of being employed, the worker would be required to join a company union or to resign from or refrain from joining any bona fide labor organization;
    4. If the acceptance of such work would be prejudicial to the continuance of an established employer-employee relationship to which the worker is a party.

History. 4748g-3: amend. Acts 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, § 107(21); 1978, ch. 389, § 12, effective July 1, 1978.

NOTES TO DECISIONS

  1. Availability.
  2. Labor Dispute.
  3. Suitability.
1. Availability.

To be available for suitable work an employee must be genuinely attached to the labor market, he must be willing and ready to work, he must have the capacity to perform some type of work, although he may be unable to do his customary work, and work within his abilities must be reasonably procurable where he lives. Kentucky Unemployment Ins. Co. v. Henry Fischer Packing Co., 259 S.W.2d 436, 1953 Ky. LEXIS 944 ( Ky. 1953 ).

2. Labor Dispute.

The statutes clearly do not contemplate that a worker who is temporarily out of employment by reason of a labor dispute must seek some other permanent employment. Kentucky Unemployment Ins. Com. v. Louisville Builders Supply Co., 351 S.W.2d 157, 1961 Ky. LEXIS 142 ( Ky. 1961 ).

Claimants who have been laid off for lack of work prior to the beginning of a strike and who are then recalled to work which but for the strike would not have been available are not required to return to work or lose their unemployment benefits. Kosmos Cement Co. v. Haney, 698 S.W.2d 819, 1985 Ky. LEXIS 274 ( Ky. 1985 ).

The intent of this section is to protect workers from being forced by unemployment insurance compensation programs into replacing striking workers. Kosmos Cement Co. v. Haney, 698 S.W.2d 819, 1985 Ky. LEXIS 274 ( Ky. 1985 ).

Work offered to a person on indefinite lay-off is new work within the meaning of subdivision (2)(a) of this section. Kosmos Cement Co. v. Haney, 698 S.W.2d 819, 1985 Ky. LEXIS 274 ( Ky. 1985 ).

3. Suitability.

Where bargaining agreement placed no duty on employees to apply for positions available during vacation shutdown, but agreement directed the posting of job list, set out wages to be paid for such work and impliedly recognized that only a limited number of positions would be available, such work could not be considered “unsuitable” merely because employees may have been paid a lower hourly rate than their regular jobs and employees who failed to sign up for such jobs were not entitled to benefits. Murray Operation of Tappan Co. v. Kentucky Unemployment Ins. Com., 583 S.W.2d 100, 1979 Ky. App. LEXIS 426 (Ky. Ct. App. 1979).

Cited:

Brock v. Kentucky Unemployment Ins. Com., 693 S.W.2d 69, 1985 Ky. App. LEXIS 619 (Ky. Ct. App. 1985).

Administrative Organization

341.110. Unemployment Insurance Commission — Quorum — Salaries.

  1. In the Education and Workforce Development Cabinet, there shall be an Unemployment Insurance Commission composed of the secretary or his or her duly authorized representative, as ex officio chairman and two (2) members appointed by the Governor.
  2. The secretary shall represent the state and the public. One (1) member shall be appointed as a representative of labor and one (1) as a representative of employers. The chairman and one (1) other member of the commission shall constitute a quorum.
  3. The members representing labor and employers shall be appointed on the basis of their merit and fitness to perform their duties and exercise the responsibilities of their offices. They shall be citizens of this state and not less than thirty (30) years of age.
  4. The terms of each member appointed to represent labor and employers shall be for four (4) years from the date of appointment and until a successor is appointed and qualified, except that appointments to vacancies shall be for the unexpired term.
  5. The compensation of the members representing labor and employers shall be $12,000 each per annum.

History. 4748g-4: amend. Acts 1950, ch. 206, § 1; 1960, ch. 164, § 1; 1974, ch. 74, Art. VI, § 96; 1986, ch. 125, § 1, effective July 15, 1986; 1996, ch. 271, § 15, effective July 15, 1996; 2006, ch. 211, § 134, effective July 12, 2006; 2009, ch. 11, § 71, effective June 25, 2009.

NOTES TO DECISIONS

Cited:

Gossmann v. Glenn, 91 F. Supp. 1005, 1950 U.S. Dist. LEXIS 2873 (W.D. Ky. 1950 ), aff’d, 191 F.2d 856, 1951 U.S. App. LEXIS 3281 (6th Cir. 1951); Cole C Kentucky Unemployment Ins. Com., 315 S.W.2d 457, 1958 Ky. LEXIS 325 ( Ky. 1958 ).

Research References and Practice Aids

Cross-References.

Qualification of members of administrative boards or commissions; oath of office, KRS 12.070 , 61.070 .

341.115. Powers and duties of the secretary — Rules and regulations — Appeals.

  1. The secretary shall have the power and authority to adopt, amend, or rescind such rules and regulations as he deems necessary or suitable for the proper administration of this chapter. The commission shall determine its own organization and methods of procedure.
  2. General and special rules may be adopted, amended, or rescinded by the secretary only after public hearing or opportunity to be heard thereon, of which proper notice has been given. General rules shall become effective ten (10) days after filing with the Secretary of State and publication in the manner which the commission prescribes. Special rules shall become effective ten (10) days after notification of or mailing to the last known address of the individuals or concerns affected thereby. Regulations shall become effective in the manner and at the time prescribed by the secretary.
  3. The commission shall serve as an appeals board to hear and decide appeals filed in accordance with the provisions of KRS 341.430 and shall adopt regulations governing the manner of filing appeals and the conduct of hearings and appeals consistent with the provisions of this chapter.

History. Enact. Acts 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, § 97.

NOTES TO DECISIONS

Cited:

Brown Hotel Co. v. Edwards, 365 S.W.2d 299, 1962 Ky. LEXIS 284 ( Ky. 1962 ).

341.116. Updating of unemployment insurance computer system.

It shall be the responsibility of the secretary to annually update and maintain the unemployment insurance mercer computerized model and to make this model available to the Legislative Research Commission through the computer facilities of the commission.

History. Enact. Acts 1982, ch. 261, § 9, effective July 15, 1982.

341.120. Quorum — Salaries — Assistant to executive director. [Repealed.]

Compiler’s Notes.

This section (4748g-4: amend. Acts 1942, ch. 19, §§ 2, 11; 1944, ch. 175; 1946, ch. 27, § 12) was repealed by Acts 1950, ch. 206, § 1.

341.125. Secretary of Education and Workforce Development Cabinet — Powers and duties — Personnel.

  1. It shall be the duty of the secretary of the Education and Workforce Development Cabinet to administer this chapter; and he shall have power and authority to make such expenditures, require such reports, make such investigations, and take such other action not specifically assigned to the cabinet, as he or she deems necessary for the proper administration of this chapter.
  2. The secretary is authorized, subject to the provisions of KRS Chapters 12, 42, 45, and 45A, to appoint, fix the compensation, and prescribe duties and powers of such officers and employees as may be necessary in the performance of his or her duties under this chapter. All positions shall be filled by persons selected and appointed on a nonpartisan merit basis. The secretary shall not employ or pay any person who is an officer or committee member of any political party organization. The secretary may delegate to any such person so appointed such power and authority as he or she deems reasonable and proper for the effective administration of this chapter.
  3. The salary and expenses of the secretary and his or her staff shall be considered a proper cost of the administration of this chapter, to be charged to the unemployment compensation administration fund in that proportion which the cost of such services rendered in the administration of this chapter bears to the overall cost of the services rendered in the administration of the cabinet.
  4. The secretary shall submit to the Governor an annual report covering the administration and operation of this chapter and make such recommendations for amendments to this chapter as he or she deems proper.
  5. In the administration of this chapter the secretary shall cooperate to the fullest extent possible with any agency of this state or any other state or of the United States and shall take such action, through the adoption of appropriate rules, regulations, administrative methods, and standards, as may be necessary to secure for this state and its citizens all the advantages available under the provisions of the Social Security Act, as amended, that relate to unemployment compensation, the Federal Unemployment Tax Act, as amended, the Wagner-Peyser Act, as amended, and the Federal-State Extended Unemployment Compensation Act of 1970.

History. Enact. Acts 1950, ch. 206, § 1; 1972, ch. 21, § 10; 1974, ch. 74, Art. VI, § 98; 1990, ch. 496, § 61, effective July 13, 1990; 1996, ch. 271, § 16, effective July 15, 1996; 2006, ch. 211, § 135, effective July 12, 2006; 2009, ch. 11, § 72, effective June 25, 2009.

Compiler’s Notes.

The Federal Unemployment Tax Act, referred to subsection (5), is compiled as 26 USCS § 3301 et seq. The Wagner-Peyser Act is compiled as 29 USCS § 49 et seq. The Federal-State Extended Unemployment Compensation Act of 1970 is compiled as a note following 26 USCS § 3304.

NOTES TO DECISIONS

1. Assessments.
2. — Correction of Errors.

Under subsection (1) of this section, the Kentucky Unemployment Insurance Commission has the statutory authority to correct errors in assessments. J. Branham Erecting & Steel Serv. Co. v. Kentucky Unemployment Ins. Comm'n, 880 S.W.2d 896, 1994 Ky. App. LEXIS 63 (Ky. Ct. App. 1994).

Research References and Practice Aids

Cross-References.

Annual and biennial reports to Governor, KRS 12.110 .

Staffs appointed by department heads, KRS 12.050 , 12.060 .

341.130. Powers and duties of commission — Executive director. [Repealed.]

Compiler’s Notes.

This section (4748g-4: amend. Acts 1942, ch. 19, §§ 3, 12) was repealed by Acts 1950, ch. 206, § 1.

341.135. Election of compensation coverage for personnel of department by commissioner of the finance and administration cabinet. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 206, § 1; 1956, ch. 148; 1974, ch. 74, Art. II, § 9 (2)) was repealed by Acts 1978, ch. 389, § 33, effective July 1, 1978.

341.140. General and special rules. [Repealed.]

Compiler’s Notes.

This section (4748g-4) was repealed by Acts 1950, ch. 206, § 1.

341.145. Reciprocal arrangements — Recovery of benefit overpayments.

  1. The secretary of the Education and Workforce Development Cabinet may enter into arrangements with the appropriate agencies of other states or of the federal government, or both, for the purpose of assisting the secretary and such agencies in the payment of benefits and the furnishing of services to unemployed or underemployed workers. Such arrangements may provide that the respective agencies shall, for and on behalf of each other, act as agents in effecting registrations for work, notices of unemployment, and any other certifications or statements relating to a worker’s claim for benefits; in making investigations, taking depositions, holding hearings, or otherwise securing information relating to benefit eligibility and payments; and in such other matters as the secretary considers suitable in effectuating the purpose of these administrative arrangements.
  2. The secretary may enter into arrangements with the appropriate agencies of other states or the federal government whereby workers performing services in this and other states for a single employing unit under circumstances not specifically provided in KRS 341.050 , or under similar provisions in the unemployment compensation laws of such other states, shall be deemed to be engaged in employment performed entirely within this state or within one of such other states.
    1. The secretary shall participate in any arrangements for the payment of benefits on the basis of combining an individual’s wages and employment covered under this chapter with his wages and employment covered under the unemployment compensation laws of other states or the federal government which are approved by the United States Secretary of Labor in consultation with the state unemployment compensation agencies as reasonably calculated to assure the prompt and full payment of benefits in such situations and which include provisions for applying the base period of a single state law to a claim involving the combining of an individual’s wages and employment covered under two (2) or more state unemployment compensation laws, and avoiding the duplicate use of wages and employment by reason of such combining. Reimbursements to another state or the federal government, paid from the fund pursuant to this subsection, shall be deemed to be benefits for the purposes of this chapter and charged to contributory employers’ reserve accounts and reimbursing employers’ accounts in accordance with the provisions of KRS 341.530(2) and (3) to the extent of calculations made on wages paid during the base period established by KRS 341.090 and wages paid after such base period; provided, however, benefits based on a period previous to the base-wage period established by KRS 341.090 shall be charged to the pooled account for contributing employers only. Provided, that if the Secretary of Labor determines that the charging of reimbursements provided above is inconsistent with the requirements of the Federal Unemployment Tax Act, charges of such reimbursements shall then be made in accordance with regulations prescribed by the secretary. (3) (a) The secretary shall participate in any arrangements for the payment of benefits on the basis of combining an individual’s wages and employment covered under this chapter with his wages and employment covered under the unemployment compensation laws of other states or the federal government which are approved by the United States Secretary of Labor in consultation with the state unemployment compensation agencies as reasonably calculated to assure the prompt and full payment of benefits in such situations and which include provisions for applying the base period of a single state law to a claim involving the combining of an individual’s wages and employment covered under two (2) or more state unemployment compensation laws, and avoiding the duplicate use of wages and employment by reason of such combining. Reimbursements to another state or the federal government, paid from the fund pursuant to this subsection, shall be deemed to be benefits for the purposes of this chapter and charged to contributory employers’ reserve accounts and reimbursing employers’ accounts in accordance with the provisions of KRS 341.530(2) and (3) to the extent of calculations made on wages paid during the base period established by KRS 341.090 and wages paid after such base period; provided, however, benefits based on a period previous to the base-wage period established by KRS 341.090 shall be charged to the pooled account for contributing employers only. Provided, that if the Secretary of Labor determines that the charging of reimbursements provided above is inconsistent with the requirements of the Federal Unemployment Tax Act, charges of such reimbursements shall then be made in accordance with regulations prescribed by the secretary.
    2. In order that such reciprocal arrangements, when entered into, may be effectuated, wages for insured work under an employment security law of another state or of the federal government shall be deemed to be wages earned in covered employment from a subject employer for the purpose of determining his benefits under this chapter.
  3. Notwithstanding any other provision of this chapter, benefits shall not be denied or reduced to an individual solely because he files a claim in another state (or a contiguous country with which the United States has an agreement with respect to unemployment compensation) or because he resides in another state (or such a contiguous country) at the time he files a claim for benefits.
  4. To the extent permissible under the laws and Constitution of the United States, the secretary is authorized to enter into or cooperate in arrangements or reciprocal agreements with appropriate and duly authorized agencies of other states or the United States Secretary of Labor or both, whereby:
    1. Overpayments of unemployment benefits, as determined under this chapter, shall be recoverable (after due notice and opportunity for appeal has been provided to the claimant) by offset from unemployment benefits otherwise payable under the unemployment compensation law of another state, in either the current or any subsequent benefit year, in an amount equivalent to the amount of overpayment determined under this chapter, provided the Department of Workforce Investment certifies to the other state the facts involved and that the claimant is liable to repay the benefits and the office requests the other state to recover the benefits; and
    2. Overpayments of unemployment benefits, as determined under the unemployment compensation law of another state, shall be recoverable (after such state has provided due notice and opportunity for appeal to the claimant) by offset from unemployment benefits otherwise payable under this chapter, in either the current or subsequent benefit year, in an amount equivalent to the amount of overpayment determined by such other state, provided such state certifies to the office the facts involved and that the individual is liable to repay the benefits and the state requests the office to recover the benefits; and
    3. Provided there is in effect a reciprocal agreement between this state and the United States Secretary of Labor, as authorized by Section 303(g)(2) of the Social Security Act, the overpayment of unemployment benefits or allowances for unemployment provided under a federal program administered by this state shall be recoverable by offset from benefits otherwise payable under this chapter or any such federal program. Such agreement shall also suffice to permit the offset from unemployment benefits, otherwise payable under a federal program administered by this state, the overpayment of unemployment benefits paid under this chapter.

If another state also has in effect a like agreement with the United States Secretary of Labor, then these provisions for cross-offset of state and federal unemployment benefits shall apply to benefits otherwise payable under this chapter, the laws of the other state or any federal unemployment program administered by either state.

History. Enact. Acts 1950, ch. 206, § 1; 1952, ch. 154, § 5; 1962, ch. 207, § 2; 1972, ch. 21, § 11; 1988, ch. 106, § 2, effective July 15, 1988; 1996, ch. 266, § 5, effective July 15, 1996; 2006, ch. 211, § 136, effective July 12, 2006; 2009, ch. 11, § 73, effective June 25, 2009; 2019 ch. 146, § 56, effective June 27, 2019.

Compiler’s Notes.

The Federal Unemployment Tax Act, referred to in subsection (3)(a), is compiled as 26 USCS § 3301 et seq. Section 303(g)(2) of the Social Security Act, referred to in subsection (5)(c), is compiled as 42 USCS § 503(g)(2).

NOTES TO DECISIONS

  1. Constitutionality.
  2. Construction.
  3. Safeguard.
1. Constitutionality.

This section does not violate Ky. Const., § 180. Commonwealth v. Associated Industries of Kentucky, 370 S.W.2d 584, 1963 Ky. LEXIS 76 ( Ky. 1963 ).

2. Construction.

The legislature has expressly declared that unemployment compensation benefits paid under the reciprocal arrangement plan shall be deemed benefits within the scope of the purpose for which taxes are collected. Commonwealth v. Associated Industries of Kentucky, 370 S.W.2d 584, 1963 Ky. LEXIS 76 ( Ky. 1963 ).

3. Safeguard.

The acceptance of the laws of other states or of the federal government is a sufficient and effective safeguard to the exercise of power by the Commissioner. Commonwealth v. Associated Industries of Kentucky, 370 S.W.2d 584, 1963 Ky. LEXIS 76 ( Ky. 1963 ).

Cited:

Cole C Kentucky Unemployment Ins. Com., 315 S.W.2d 457, 1958 Ky. LEXIS 325 ( Ky. 1958 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Ziegler, Legitimizing the Administrative State: The Judicial Development of the Nondelegation Doctrine in Kentucky, 4 N. Ky. L. Rev. 87 (1977).

341.150. Publication of chapter.

The secretary shall cause to be printed for distribution to the public the text of this chapter, the secretary’s regulations and general rules, his annual report to the Governor, and any other material he deems relevant and suitable, and shall furnish the same to any person upon application therefor.

History. 4748g-4: amend. Acts 1950, ch. 206, § 1.

Research References and Practice Aids

Cross-References.

Annual and biennial reports to Governor, KRS 12.110 .

Type for revised statutes may be used to print pamphlets of laws, KRS 7.120 .

341.160. Personnel. [Repealed.]

Compiler’s Notes.

This section (4748g-4: amend. Acts 1942, ch. 19, §§ 4, 13; 1944, ch. 176; 1946, ch. 27, § 13; 1948, ch. 216, § 4) was repealed by Acts 1950, ch. 206, § 1.

341.170. Advisory councils. [Repealed.]

Compiler’s Notes.

This section (4748g-4: amend. Acts 1950, ch. 206, § 1) was repealed by Acts 1974, ch. 74, Art. VI, § 108.

341.180. Employment stabilization.

Upon direction of the Governor, the secretary with the advice and aid of the advisory councils, shall take all appropriate steps to reduce and prevent unemployment; encourage and assist in the adoption of practical methods of vocational training, retraining and vocational guidance; investigate, recommend, advise, and assist in the establishment and operation by cities, counties, school districts and the state, of reserves for public works to be used in times of business depression and unemployment; and to promote the employment of unemployed workers throughout the state in every feasible way, and to these ends to carry on and publish the results of investigations and research studies.

History. 4748g-4: amend. Acts 1950, ch. 206, § 1.

341.190. Records and reports — Confidential treatment — Exceptions.

  1. As used in this section:
    1. “Agent” means one who acts for or in the place of an individual, an employing unit, or a public official by the authority of that individual, employing unit, or public official; and
    2. “Public official” means an official, agency, or public entity within the executive branch of federal, state, or local government who or which has responsibility for administering or enforcing a law, or an elected official in federal, state, or local government.
  2. Each employing unit shall keep true and accurate work records of all workers employed by it, of the wages paid by it to each worker, and such other information as the secretary of the Education and Workforce Development Cabinet considers necessary for the proper administration of this chapter. The records shall be open for inspection and subject to being copied by the secretary or his or her authorized representatives at any reasonable time and as often as necessary.
  3. The secretary may require any employing unit to furnish to the cabinet at its central office from time to time information concerning the total amounts of wages paid, total number of persons employed, an individual record of each worker employed, an individual record of each worker whose employment has been terminated or who has been laid-off, an individual wage and hour record of each worker employed part time entitled to benefits, and other related matters, including hours worked, which the secretary considers necessary to the effective administration of this chapter.
  4. Information obtained from an employing unit or individual and other records made by the cabinet in the administration of this chapter are confidential and shall not be published or be open for public inspection, except as provided below and in subsections (5) and (6) of this section:
      1. Public officials and the agents and contractors of public officials, in the performance of their official duties, may be provided information and records, but the public officials receiving the information and records shall assure the confidentiality, as required in this section, of all information and records so released. Official duties do not include solicitation of contributions or expenditures to or on behalf of a candidate for public office or a political party; (a) 1. Public officials and the agents and contractors of public officials, in the performance of their official duties, may be provided information and records, but the public officials receiving the information and records shall assure the confidentiality, as required in this section, of all information and records so released. Official duties do not include solicitation of contributions or expenditures to or on behalf of a candidate for public office or a political party;
      2. A contractor shall include a temporary staffing engaged by the cabinet for any purpose in connection with the administration of this chapter; and
      3. Disclosures shall be made under this subsection only if the recipient has entered into a written, enforceable, and terminable agreement with the cabinet and has satisfied the safeguards set forth in federal statutes and regulations;
      1. An individual or employing unit shall be provided, upon request, information and records maintained by the cabinet in the administration of wage records, claim, reserve account, reimbursing employer account, or any proceeding under this chapter to which it is a party. (b) 1. An individual or employing unit shall be provided, upon request, information and records maintained by the cabinet in the administration of wage records, claim, reserve account, reimbursing employer account, or any proceeding under this chapter to which it is a party.
      2. An agent of an individual or employing unit shall be provided the individual’s or employing unit’s information and records upon the presentation of a written release or other legally enforceable evidence of the informed consent of the individual or employing unit.
      3. An attorney retained by an individual or employing unit in any proceeding under this chapter shall be provided the individual’s or employing unit’s information and records if the attorney asserts in writing that he or she is representing that individual or employing unit.
      4. An elected official performing constituent services shall be provided the individual’s or employing unit’s information and records if the official presents reasonable written evidence that the individual or employing unit has authorized the disclosure;
    1. A third party other than an agent, or third party on an ongoing basis, shall be provided the individual or employing unit’s information and records if the individual or employing unit to whom the information pertains provides a signed written release which shall specify:
      1. The information and records to be disclosed;
      2. The purpose for which the information and records are sought, specifying the expected service or benefit to the individual signing the release, or specifying their use in the administration or evaluation of the public program to which the release pertains;
      3. Assurance that the information and records shall be used solely for that purpose;
      4. All parties who may receive the information and records disclosed; and
      5. That state government files shall be accessed to obtain information and records.
    2. Precedential orders issued by the Unemployment Insurance Commission shall be released provided that Social Security numbers and employer identification numbers have been removed and the disclosure is otherwise consistent with federal and state law;
    3. A public official with authority under state or federal law to obtain the information and records by subpoena, other than a clerk of court on behalf of a litigant, shall be provided information and records upon service of a duly issued subpoena;
    4. A federal official, when required for the purposes of oversight and auditing of the unemployment insurance program, shall be provided information and records;
    5. Statistical information derived from information and records obtained or made by the cabinet may be released to the Bureau of Labor Statistics under a cooperative agreement or may be published, if it in no way reveals the identity of any individual or employing unit; and
    6. Nothing in this section shall preclude the secretary or any employee of the cabinet from testifying in any proceeding under this chapter or in any court, or from introducing as evidence information and records obtained or made by the cabinet in an action for violation of state or federal law to which the cabinet is a party or upon order of the court.
  5. Disclosures shall be made under subsection (4) of this section only if:
    1. The disclosure is necessary for the proper administration of the unemployment insurance program;
    2. No more than an incidental amount of staff time or a nominal processing cost is required to make the disclosure; or
    3. The cost of providing the information and records is paid by the recipient prior to the disclosure, consistent with federal laws and regulations, except this requirement shall not apply to disclosures made under subsection (4) (f) of this section nor to disclosures made under subsection (4)(e) and (h) of this section if the cabinet attempts without success to recover the cost of disclosure. For disclosures made to other public officials under subsection (4) (a) of this section, this requirement shall be met if the recipient provides a reciprocal benefit to the cabinet in the administration of the unemployment insurance program, or if a reasonable reimbursement for the disclosure shall be determined under federal law.
  6. Recipients of information and records disclosed under subsection (4)(a) and (c) of this section may redisclose the information and records only as follows:
    1. To the individual or employing unit who is the subject of the information and records;
    2. To an attorney or duly authorized agent representing the individual or employing unit;
    3. In any civil or criminal proceedings for or on behalf of the recipient;
    4. In response to a subpoena but only as provided in subsection (4)(e) and (h) of this section;
    5. A public official may redisclose to an agent or contractor, but only if the public official retains responsibility for the uses of the confidential information and records by the agent or contractor and subject to the safeguards set forth in the agreement required under subsection (4) of this section;
    6. A public official may redisclose to another public official;
    7. A state or local child support enforcement agency may redisclose to its agent under contract for the purpose of carrying out child support enforcement; or
    8. When specifically authorized by a written release for redisclosure that meets the requirements of subsection (4)(c) of this section.
  7. Any disclosure or use of information and records that is inconsistent with the provisions of this section shall be subject to the penalty prescribed in KRS 341.990(11).
  8. No information and records held confidential under subsection (4) of this section shall be the subject matter or basis for any suit for slander or libel in any court, but no employer or employee, or his representative, testifying before the commission, the secretary, or any duly authorized representative thereof, shall be exempt from punishment for perjury.

Disclosures shall be made under this subsection only if the recipient has entered into a written, enforceable, and terminable agreement with the cabinet and has satisfied the safeguards set forth in federal statutes and regulations;

History. 4748g-4: amend. Acts 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, § 99; 1980, ch. 188, § 267, effective July 15, 1980; 1990, ch. 6, § 3, effective July 13, 1990; 1996, ch. 266, § 6, effective July 15, 1996; 1996, ch. 271, § 17, effective July 15, 1996; 2006, ch. 211, § 137, effective July 12, 2006; 2008, ch. 111, § 1, effective July 15, 2008; 2009, ch. 11, § 74, effective June 25, 2009; 2017 ch. 133, § 2, effective June 29, 2017.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Violations.
1. Constitutionality.

Provisions of the Unemployment Compensation Law requiring the filing of informational reports by employers is not unreasonable and therefore invalid because the same information is included in income tax reports to the Kentucky Department of Revenue, since the unemployment compensation informational reports are designed for a purpose entirely different from that of income tax reports, so that in the absence of a showing that the filing of unemployment compensation returns is unreasonably burdensome on the employer in comparison with the ease with which the information could be obtained from income tax returns, the requirement for filing the unemployment compensation returns is constitutional. Washer One, Inc. v. Commonwealth, 482 S.W.2d 590, 1972 Ky. LEXIS 197 ( Ky. 1972 ).

2. Violations.

Where a state agency employee blew the whistle internally under KRS 61.102 by informing the employer’s in-house counsel that a supervisor was throwing confidential and proprietary files in a dumpster that was accessible to the public in violation of KRS 341.190 , the employer was not entitled to partial summary judgment; however, because KRS 61.101(2) did not impose individual liability, the individual defendants were entitled to partial summary judgment. Gaines v. Workforce Dev. Cabinet, 2005 Ky. App. LEXIS 241 (Ky. Ct. App.), sub. op., 2005 Ky. App. Unpub. LEXIS 1099 (Ky. Ct. App. Nov. 10, 2005), aff'd, 276 S.W.3d 789, 2008 Ky. LEXIS 300 ( Ky. 2008 ).

Cited:

Louisville Title Mortg. Co. v. Commonwealth, 299 Ky. 224 , 184 S.W.2d 963, 1944 Ky. LEXIS 1041 ( Ky. 1944 ).

Opinions of Attorney General.

Request to inspect records pertaining to the identity of employers who had been granted “common paymaster status” was properly denied under KRS 61.878(1)(j) (now (1)(l)), prohibiting disclosure of records made confidential by statute, since there were currently no common paymaster accounts and since the identity of employers in the unemployment compensation program is made confidential by subsection (3) of this section. OAG 83-1 .

Final orders of the Unemployment Insurance Commission, which are cited by the commission as precedent in subsequent decisions, should be open to public inspection as evidence of a final agency action; accordingly, the Commission acted improperly when, based on this section, it denied an inspection request, since this section mandates confidentiality only for communications from the employer or worker to the Commission, and does not address communications from the Commission to the employer or worker. OAG 83-405 .

The Cabinet for Human Resources acted within the provisions of the Open Records Act when it denied the request to inspect and copy records pertaining to the unemployment insurance claims of two individuals, as such records were excluded from public inspection pursuant to subsection (3) of this section and subdivision (1)(j) (now (1)(l)) of KRS 61.878 . OAG 86-56 .

The Division of Unemployment Insurance acted within the provisions of the Open Records Act in denying the request to inspect records pertaining to claims filed under the provisions of KRS Chapter 341, and material collected and compiled pursuant to the agency’s statutorily imposed duties as to such information was excluded from public inspection pursuant to subsection (3) of KRS 341.190 and subdivision (1)(j) (now (1)(l)) of KRS 61.878 . OAG 87-49 .

The Division of Unemployment Insurance improperly denied a request to inspect records pertaining to the names of specific persons who have filed claims for benefits under the provisions of the unemployment insurance program. OAG 88-68 .

The Education Cabinet properly relied on KRS 341.190 and KRS 151B.280(3), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying a request to inspect and copy decisions of the Unemployment Insurance Commission that relate to the issue of who is considered to be a employer for purposes of having to pay state unemployment insurance tax. OAG 83-405 is overruled on the basis of subsequent amendments to the law. OAG 05-ORD-186.

341.200. Power to hear witnesses, issue subpoenas, and serve process.

  1. In the discharge of the duties imposed by this chapter members of the commission, the secretary or any duly authorized representative thereof, may administer oaths and affirmations, take depositions, certify official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records considered necessary and relevant as evidence in connection with the administration of this chapter. Such subpoena shall be served in the same manner as a subpoena issued out of a Circuit Court, and the sheriff shall receive the same fee as provided by law for like service in civil actions. Witnesses subpoenaed shall be allowed witnesses’ fees according to the rates prescribed by KRS 421.015 for each day their attendance is actually required at a hearing.
  2. The secretary or the commission, or any of their authorized representatives, shall have the power, in any and all counties of this Commonwealth, now granted by law to sheriffs within their respective jurisdictions, to execute and make due return of all notices, summonses, including summonses duces tecum, subpoenas, and executions in respect to all court actions instituted to enforce the provisions of this chapter. The secretary, a member of the commission, or any of their authorized representatives shall not be deemed to be an interested party in the action by reason of his official or representative capacity.

History. 4748g-4; 1950, ch. 206, § 1; 1952, ch. 154, § 6, effective March 24, 1952; 1974, ch. 74, Art. VI, § 107(31); 1980, ch. 188, § 268, effective July 15, 1980; repealed and reenact. Acts 1990, ch. 425, § 3, effective July 13, 1990; 2006, ch. 211, § 138, effective July 12, 2006.

Research References and Practice Aids

Cross-References.

Department heads may administer oaths and examine witnesses under oath, KRS 12.120 .

341.210. Protection against self-incrimination.

No person shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda or other records before the commission or any member thereof, or the secretary or his duly authorized representative, on the ground that the evidence required of him may tend to incriminate or subject him to a penalty or forfeiture. No person shall be prosecuted or subjected to any suit, penalty, or forfeiture on account of any transaction, matter, or thing concerning which he or his agent or worker is compelled, after having claimed privilege against self-incrimination, to give evidence, except that such witness so testifying shall not be exempt from punishment for perjury.

History. 4748g-4: amend. Acts 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, § 107(31).

NOTES TO DECISIONS

Cited:

Commonwealth v. Brown, 619 S.W.2d 699, 1981 Ky. LEXIS 263 ( Ky. 1981 ), overruled, Murphy v. Commonwealth, 652 S.W.2d 69, 1983 Ky. LEXIS 249 ( Ky. 1983 ), overruled in part, Murphy v. Commonwealth, 652 S.W.2d 69, 1983 Ky. LEXIS 249 ( Ky. 1983 ).

341.220. Cooperation with other agencies.

  1. In the administration of this chapter, the secretary shall:
    1. To the fullest extent consistent with the provisions of this chapter, cooperate with the federal Department of Labor;
    2. Make such reports in such form and containing such information as such agency may from time to time require;
    3. Comply with such provisions as such agency may from time to time find necessary to assure the correctness and verification of such reports; and
    4. Comply with the provisions of Title III of the Social Security Act relating to the expenditure of such funds as may be allotted and paid to this state for the purpose of assisting in the administration of this chapter.
  2. Upon request therefor the secretary shall furnish to any agency of this or any other state or the United States charged with the administration of public works or assistance, through public employment or otherwise, the name, address, ordinary occupation and employment status of each recipient of benefits and such recipient’s rights to further benefits under this chapter.
  3. The secretary may make records relating to the administration of this chapter available to the Railroad Retirement Board and may furnish the Railroad Retirement Board, at the expense of that board, as many copies thereof as the board requests.
  4. The secretary may afford reasonable cooperation, including reciprocal collection of contributions by the enforcement of foreign judgments, with every agency of any state or of the United States charged with the responsibility of administering an unemployment insurance law.
  5. The secretary shall require employment offices in this state, upon request of a public agency administering or supervising the administration of a state plan approved under Part A of Title IV of the Social Security Act or of a public agency charged with any duty or responsibility under any program or activity authorized or required under Part D of Title IV of such act, shall, and, notwithstanding any other provision of law, is hereby authorized to furnish to such agency making the request, from any data contained in the files of any such employment office, information with respect to any individual specified in the request as to (a) whether such individual is receiving, has received, or has made application for unemployment compensation, and the amount of any such compensation being received by such individual; (b) the current (or most recent) home address of such individual; and (c) whether such individual has refused an offer of employment, and, if so, a description of the employment so offered and terms, conditions, and rate of pay therefor, provided that the secretary shall require employment offices in this state to furnish such other information as shall be required by the regulations of the Secretary of Health, Education and Welfare.

History. 4748g-4: amend. Acts 1950, ch. 206, § 1; 1972, ch. 21, § 12; 1974, ch. 74, Art. VI, § 107(31); 1978, ch. 389, § 13, effective July 1, 1978.

Compiler’s Notes.

Title III of the Social Security Act, referred to in subsection (1)(d), is compiled as 42 USCS § 501 et seq. Parts A and D of Title IV of the Social Security Act, referred to in subsection (5), are compiled as 26 USCS § 601 et seq. and 26 USCS § 651 et seq., respectively.

341.230. Destruction of records.

The secretary may authorize the destruction of such original reports and records as have been properly recorded and summarized in the permanent records of the Education and Workforce Development Cabinet or are no longer considered necessary for the proper administration of this chapter. Wage records of the individual worker or transcripts thereof may be destroyed or disposed of two (2) years after the expiration of the period covered by them or upon proof of death of the worker. Such destruction or disposition shall be made only by order of the secretary. Any money received from the disposition of such records shall be deposited to the credit of the unemployment compensation administration fund.

History. 4748g-5: amend. Acts 1950, ch. 206, § 1; 1952, ch. 154, § 7; 1974, ch. 74, Art. VI, § 107(31); 1980, ch. 188, § 244, effective July 15, 1980; 1996, ch. 271, § 18, effective July 15, 1996; 2006, ch. 211, § 139, effective July 12, 2006; 2009, ch. 11, § 75, effective June 25, 2009.

341.240. Unemployment compensation administration fund.

  1. There is hereby created in the State Treasury a special fund to be known as the unemployment compensation administration fund. All money deposited or paid into this fund is hereby appropriated and shall be continuously available to the secretary for expenditure consistent with this chapter, and shall not lapse at any time. A general statement that all continuing appropriations are repealed shall not be construed as repealing this section.
  2. All money in the unemployment compensation administration fund shall be expended solely to defray the cost of the administration of this chapter.
    1. The unemployment compensation administration fund shall consist of all money appropriated by this state and all money received from the United States, or any agency thereof or from any other source, for the administration of this chapter. (3) (a) The unemployment compensation administration fund shall consist of all money appropriated by this state and all money received from the United States, or any agency thereof or from any other source, for the administration of this chapter.
    2. The secretary is authorized to obtain funding through any commercially reasonable means for the benefit of the unemployment compensation administration fund, including reasonable expenses, so long as the debt, note, security, or obligations are payable solely from the surcharge proceeds, revenues, or funds and accounts specifically authorized for such purpose under this chapter. The State Treasurer shall maintain a separate record of all money received for the unemployment compensation administration fund under this paragraph. The secretary is authorized to pledge the surcharge proceeds under this chapter as security for financing obtained pursuant to this section.
    3. Any obligation incurred under this subsection shall not constitute a debt, liability, obligation, or pledge of the credit or taxing power of this Commonwealth. Any debt or obligation incurred as a result of this subsection shall be payable solely from the surcharge proceeds, revenues, or funds and accounts pledged or available for such purpose under this chapter.
    4. On or before July 1, 2012, and quarterly thereafter, the secretary shall report to the Legislative Research Commission, for referral to the Appropriations and Revenue Committee and the Labor and Industry Committee, on the financing authorized in this section for the payment of interest on advances under Title XII of the Social Security Act, the status of the trust fund, and efforts to obtain a cap on the federal unemployment tax credit reduction.
  3. In order to establish and maintain free employment offices, the secretary may enter into agreements with the Railroad Retirement Board or any other agency charged with the administration of an unemployment insurance law, with any cities or other political subdivisions of this state or with any private nonprofit organization. As a party to any such agreement, the secretary may accept money, service or quarters as a contribution to the unemployment compensation administration fund.

History. 4748g-5: amend. Acts 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, § 107(31); 2012, ch. 52, § 1, effective April 11, 2012.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, D, 7, (1) at 874.

341.243. Service capacity upgrade fund.

  1. There is created within the State Treasury a special fund known as the service capacity upgrade fund that shall be administered separate and apart from all public money or funds of the state.
  2. The service capacity upgrade fund shall be used solely for acquisition and upgrading of the technology base, program integrity functions, and service delivery capacity in support of the programs administered by the Office of Unemployment Insurance. The secretary shall have full power, authority, and jurisdiction over the fund, including all money, property, and securities belonging thereto, and shall perform any act necessary or convenient in the administration of the fund consistent with this section. Any expenditure of the fund shall be coordinated with and approved by the Commonwealth Office of Technology, and nothing in this section shall be construed as reducing or limiting the authority of the Commonwealth’s chief information officer over all technology expenditures. The secretary shall provide an annual report to the Interim Joint Committee on Economic Development and Workforce Investment detailing all receipts and expenditures of the fund.
  3. Any money collected under the provisions of this section shall be invested at interest in banks or other interest-bearing obligations of the United States. Investments shall at all times be made so that all the assets of the service capacity upgrade fund shall be convertible into cash when needed for the payment of expenses incurred in upgrading the service capacity of the Office of Unemployment Insurance. All interest income received under this section shall be credited to the fund. The State Treasurer shall dispose of securities or other property belonging to the fund only under the direction of the secretary and the secretary of the Finance and Administration Cabinet.
  4. Beginning October 1, 2018, all rates otherwise established under KRS 341.270 and 341.272 shall be adjusted by subtracting seventy-five thousandths percent (0.075%) from each rate, but only if the unemployment insurance trust fund balance exceeds the balance of the trust fund as of December 31, 2017.
  5. For any calendar year in which all rates have been reduced in accordance with subsection (4) of this section, all contributory employers shall pay into the service capacity upgrade fund an amount equal to the percentage by which rates were reduced multiplied by their taxable wages paid during that calendar year. Payments shall be made at the same time and in the same manner as prescribed for payment of contributions under KRS 341.260 and all regulations prescribed by the secretary in support of that section. The restrictions in KRS 341.470(1) apply equally to the provisions of this section. Failure to make these payments shall be subject to interest and all other collection actions provided for failure to make contributions under KRS 341.300 .
  6. All payments required under subsection (5) of this section, along with any interest due to late payment of these assessments, shall be deposited in the service capacity upgrade fund.
  7. Notwithstanding subsection (4) of this section, the secretary may exercise his or her discretion to reduce the percentage rate prescribed in subsection (4) of this section or suspend required payments to the service capacity upgrade fund at any time.
  8. The secretary shall suspend the reduction of the rate prescribed in subsection (4) of this section at any time when collections for the service capacity upgrade fund exceed a cumulative amount of sixty million dollars ($60,000,000). At the time payments are suspended, any funds thus far collected under subsection (4) of this section in excess of those necessary to fund technology upgrades, shall be deposited into the unemployment insurance trust fund. Any future collection of past due payments to the service capacity upgrade fund, including any applicable penalty and interest funds, shall be deposited into the penalty and interest fund.

HISTORY: Enact. Acts 1998, ch. 167, § 11, effective July 15, 1998; 2006, ch. 211, § 140, effective July 12, 2006; 2018 ch. 134, § 1, effective July 14, 2018; 2019 ch. 146, § 57, effective June 27, 2019.

341.245. Authority to acquire office space.

Subject to the provisions of KRS 56.440 to 56.550 , inclusive, the secretary of the Education and Workforce Development Cabinet is authorized and empowered to use all or any part of the funds accumulated under the provisions of KRS 341.295 for the purpose of acquiring suitable space for either central or district offices of the cabinet by way of purchase, lease, contract, or in any other manner including the right to use said funds or any part thereof to assist in financing the construction of any building erected by the Commonwealth or any of its agencies wherein available space will be provided for the cabinet under lease or contract between the cabinet and the Commonwealth or such other agency whereby said cabinet will continue to occupy such space, rent free, after the cost of financing such building has been liquidated.

History. Enact. Acts 1950, ch. 206, § 1; 1952, ch. 183; 1974, ch. 74, Art. VI, § 100; 1980, ch. 188, § 269, effective July 15, 1980; 2006, ch. 211, § 141, effective July 12, 2006; 2009, ch. 11, § 76, effective June 25, 2009.

Research References and Practice Aids

Cross-References.

Budget and Financial Administration, KRS Chapter 45.

Contributions

341.250. Employer’s coverage — Period — Termination — Election of liability.

  1. Any employing unit that becomes subject to this chapter within any calendar year shall be considered a subject employer during the whole of that calendar year, except as specifically provided elsewhere in this section or this chapter.
  2. Except as provided in subsections (3) and (5) of this section, a subject employer shall cease to be a subject employer only as of the first day of January of any calendar year if he files with the Office of Unemployment Insurance, Department of Workforce Investment, on or before the fifteenth day of April of that year, a written application for termination of coverage, and the covered employment performed for such subject employer within the preceding calendar year was not sufficient to render an employing unit a subject employer under KRS 341.070 . The secretary may, however, after notifying such employer in writing at his last known address, terminate the coverage of any subject employer as of the first day of January of any calendar year if such subject employer has had no individuals in covered employment in this state at any time during the three (3) preceding calendar years, and the balance of such employer’s reserve account may be immediately transferred to the pooled account.
    1. Any employing unit not otherwise subject to this chapter that files with the office its written election to become a subject employer for not less than two (2) calendar years shall, with the written approval of such election by the secretary, become subject hereto to the same extent as all other subject employers, as of the date stated in such approval, but not with respect to the period previous to such date. Such subject employer shall cease to be subject hereto as of January 1 of any calendar year subsequent to such two (2) calendar years, only if on or before April 15 of such year, it has filed with the office a written notice to that effect. (3) (a) Any employing unit not otherwise subject to this chapter that files with the office its written election to become a subject employer for not less than two (2) calendar years shall, with the written approval of such election by the secretary, become subject hereto to the same extent as all other subject employers, as of the date stated in such approval, but not with respect to the period previous to such date. Such subject employer shall cease to be subject hereto as of January 1 of any calendar year subsequent to such two (2) calendar years, only if on or before April 15 of such year, it has filed with the office a written notice to that effect.
    2. Any employing unit for which services that do not constitute covered employment are performed may file with the office a written election that all such services performed by individuals in its employ in one (1) or more distinct establishments or places of business shall be considered to constitute covered employment by a subject employer for all the purposes of this chapter for not less than two (2) calendar years. Upon written approval of such election by the secretary, such services shall be considered to constitute covered employment from and after the date stated in such approval, but not with respect to the period previous to such date. Such services shall cease to be considered covered employment subject hereto as of January 1 of a calendar year subsequent to such two (2) calendar years, only if on or before April 15 of such year such employing unit has filed with the office a written notice to that effect.
    3. Any employing unit having service performed in covered employment solely by reason of KRS 341.050(1)(h) may terminate such service as “covered employment” as of the first day of January of any calendar year if such service does not meet the provisions of paragraph (e), (f) or (g), but only if on or before April 15 of such year, the employing unit has filed with the office a written request to terminate service as “covered employment.”
  3. An employing unit that becomes a subject employer under KRS 341.070(7), shall become subject as of the date of acquisition.
  4. Notwithstanding the provisions of subsections (1), (2), and (3) of this section, any subject employer whose entire reserve account has been transferred to a successor in interest as provided for in KRS 341.540 shall immediately cease to be a subject employer and shall thereafter become a subject employer only upon his future employment experience.

History. 4748g-6: amend. Acts 1948, ch. 216, § 5; 1950, ch. 206, § 1; 1964, ch. 168, § 2; 1972, ch. 21, § 13; 1974, ch. 74, Art. VI, § 107(23), (31); 1978, ch. 389, § 14, effective July 1, 1978; 1988, ch. 106, § 3, effective July 15, 1988; 2006, ch. 211, § 142, effective July 12, 2006; 2019 ch. 146, § 58, effective June 27, 2019.

NOTES TO DECISIONS

1. Change in Status.

If an employer once becomes subject to the Unemployment Compensation Act, he remains in this status until he takes an affirmative step to terminate his liability. Commonwealth ex rel. Unemployment Compensation Com. v. Fritz, 236 S.W.2d 262, 1950 Ky. LEXIS 1097 ( Ky. 1950 ).

Cited:

Oppenheimer v. Commonwealth, 305 Ky. 147 , 202 S.W.2d 373, 1947 Ky. LEXIS 707 ( Ky. 1947 ); Commonwealth ex rel. Division of Unemployment Ins. v. Goheen, 372 S.W.2d 782, 1963 Ky. LEXIS 140 ( Ky. 1963 ).

Opinions of Attorney General.

Since this chapter permits subdivisions and municipalities to voluntarily become employing units and cover their employees, and since counties fall within the definition of political subdivisions or municipalities, and since this chapter requires employers subject thereto to pay contributions, there is present authority for counties participating to appropriate funds out of their general tax revenues to cover the employer’s cost of such contributions. OAG 63-145 .

Because primary responsibility for the payment of necessary office expenses and the salaries of deputies or assistants rests upon the respective fee officers the deputies or assistants work for, the fees earned by those offices may be used to pay the unemployment contributions. OAG 79-433 .

It is the county government which is ultimately liable to pay the unemployment insurance contributions for all nonelective employees who perform services for the benefit of the county. OAG 79-433 .

341.260. Payment of contributions by employer — Guarantee and liability of contractor.

  1. Contributions shall accrue and become payable by each subject employer for each calendar year in which he is subject to this chapter. Such contributions shall be based upon wages paid during such calendar year for covered employment. Such contributions shall become due and be paid at the offices of the Office of Unemployment Insurance, Department of Workforce Investment, in Frankfort by each subject employer to the office for the fund in accordance with such regulations as the secretary prescribes, and shall not be deducted in whole or in part from the wages of workers in his employ. In the payment of any contributions, a fractional part of a cent shall be disregarded, unless it amounts to one-half cent ($0.005) or more, in which case it shall be increased to one cent ($0.01).
  2. Any contractor, who is or becomes a subject employer under the provisions of this chapter, who contracts with any subcontractor, who also is or becomes a subject employer under the provisions of this chapter, shall withhold sufficient moneys on said contract to guarantee that all contributions, penalties, and interest are paid upon completion of said contract, or shall require of said subcontractor a good and sufficient bond guaranteeing payment of all contributions, penalties, and interest due, or to become due with respect to wages paid for employment on said contract. Failure to comply with the provisions of this section shall render said contractor directly liable for such contributions, penalties, and interest due from said subcontractor and the wages paid by said subcontractor shall be deemed wages paid by the said contractor with respect to the same periods for all purposes under this chapter, and liens of the same nature are attachable and enforceable in the same manner as liens under KRS 341.310 and 341.315 . A person, employing unit, or entity that enters into a verbal or written agreement with another, or between which there exists an implied contract based upon the circumstances, conduct, or acts or relations of the parties:
    1. To have work performed consisting of the removal, excavation or drilling of soil, rock, or mineral, or the cutting or removal of timber from land; or
    2. To have work performed of a kind which is a customary or a recurrent part of the work of the trade, business, occupation, or profession of such person or entity, shall for the purposes of this subsection be deemed a contractor, and such other person or entity a subcontractor. This subsection shall not apply to the owner or lessee of land principally used for agriculture.

History. 4748g-7: amend. Acts 1950, ch. 206, § 1; 1952, ch. 154, § 8; 1972, ch. 21, § 14; 1974, Art. VI, § 107(23), (31); 1988, ch. 106, § 4, effective July 15, 1988; 2006, ch. 211, § 143, effective July 12, 2006; 2019 ch. 146, § 59, effective June 27, 2019.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Excise Tax.
  3. Voluntary Contribution.
1. Constitutionality.

Since the primary objective of the unemployment compensation laws is to provide relief against the kind of unemployment that is created when jobs that once existed cease to exist, it is not discriminatory for the tax to be imposed upon those who create jobs while exempting those who do not. Washer One, Inc. v. Commonwealth, 482 S.W.2d 590, 1972 Ky. LEXIS 197 ( Ky. 1972 ).

2. Excise Tax.

The payments required to be made by employers, for unemployment benefit fund, are regarded as an excise tax. Shaw v. Kentucky Unemployment Compensation Com., 297 Ky. 815 , 181 S.W.2d 697, 1944 Ky. LEXIS 838 ( Ky. 1944 ). See Lexington Cemetery Co. v. Commonwealth, 297 Ky. 851 , 181 S.W.2d 699, 1944 Ky. LEXIS 839 ( Ky. 1944 ); Louisville Title Mortg. Co. v. Commonwealth, 299 Ky. 224 , 184 S.W.2d 963, 1944 Ky. LEXIS 1041 (Ky. 1944).

3. Voluntary Contribution.

Where, seven days after adopting resolution to end corporation’s life within 35 days, a corporation, under the provisions of subsection (5) of KRS 341.530 , made a voluntary contribution to build up its reserve account, the voluntary contribution, not being a tax which could have been imposed upon the corporation and for which it could have been held liable, was not, within the meaning of the income tax law, deductible as tax paid nor as an ordinary or necessary business expense in liquidating the corporation or in carrying on any trade or business engaged in by the corporation. Gossmann v. Glenn, 91 F. Supp. 1005, 1950 U.S. Dist. LEXIS 2873 (W.D. Ky. 1950 ), aff'd, 191 F.2d 856, 1951 U.S. App. LEXIS 3281 (6th Cir. Ky. 1951 ).

Cited:

Barnes v. Indian Refining Co., 280 Ky. 811 , 134 S.W.2d 620, 1939 Ky. LEXIS 204 ( Ky. 1939 ); Shelley v. National Carbon Co., 285 Ky. 502 , 148 S.W.2d 686, 1941 Ky. LEXIS 420 ( Ky. 1941 ); Commonwealth ex rel. Unemployment Compensation Com. v. Durham, 290 Ky. 408 , 161 S.W.2d 610, 1942 Ky. LEXIS 411 , 140 A.L.R. 1040 ( Ky. 1942 ); Fritz v. Commonwealth, 309 Ky. 637 , 218 S.W.2d 659, 1949 Ky. LEXIS 776 ( Ky. 1949 ).

Opinions of Attorney General.

This section creates a liability on the prime contractor’s part irrespective of any notice and it is the contractor’s duty to ascertain whether his subcontractor owes the state unemployment insurance moneys before releasing moneys to such subcontractor. He can protect himself by withholding moneys until he is sure there is no liability for a certain period or require a bond from the subcontractor to protect the prime contractor. OAG 83-69 .

If the general contractor has already released its subcontractors, as is common upon a reasonable period of time after completion of the contract, the bureau may impose a lien upon it without giving notice prior to the release; the general contractor has a duty to see that his subcontractor has paid such taxes before the general contractor releases moneys owed to his subcontractor. OAG 83-69 .

The bureau for social insurance is not required to give notice to a general contractor against which it proposes to file a lien under subsection (2) of this section for unpaid contributions of a subcontractor since the notice of lien provisions of KRS 341.310 and 341.315 address persons other than the contractor who, for purposes of this section, is the subject employer. OAG 83-69 .

341.262. Penalties for failure to file reports.

  1. Any employing unit failing to make and file reports required under this chapter on or before the due date of such reports shall be subject, in addition to any other penalty provisions in this chapter to a penalty of twenty-five dollars ($25) for failure to file such reports. Failure to file such reports by the last day of the month following the due date shall result in an additional penalty of fifty dollars ($50) being imposed upon the employing unit.
  2. The penalties provided for in subsection (1) of this section apply to the first failure of an employing unit to timely make and file required reports during a calendar year. If during the same calendar year the employing unit is again untimely in the making and filing of a like report, the employing unit shall be subject to the penalties provided for in subsection (1) of this section plus an additional penalty of one hundred dollars ($100).
  3. The penalties provided for in subsections (1) and (2) of this section shall be collected in the same manner as provided for in KRS 341.300 and shall be paid into the same fund.

History. Enact. Acts 1972, ch. 21, § 15; 1974, ch. 74, Art. VI, § 107(23); 1986, ch. 26, § 3, effective July 15, 1986.

341.263. Estimated reports and assessments.

If any employer fails to file reports when due, or files an incorrect or insufficient report, the secretary may, after an investigation, determine such employer’s liability and assess the contributions due on the basis of an estimate of such employer’s payroll, and shall give written notice of such assessment to such employer. Such determination or assessment shall become final twenty (20) days after such notice was mailed to the employer’s last known address unless an appeal is initiated under KRS 341.430 . After such determination or assessment shall have become final as herein provided, it shall be received in evidence in all courts of this Commonwealth as conclusive of the amount owing the Commonwealth in respect to the claim or claims concerning which the determination shall have been made.

History. Enact. Acts 1972, ch. 21, § 16; 1974, ch. 74, Art. VI, § 107(21).

341.265. Remedies for failure to report.

  1. Any employing unit refusing to make reports required under this chapter within ten (10) days after written notice sent by the cabinet to such employing unit’s last known address by certified mail, notifying such employing unit that this section will be invoked unless such reports are filed, may be restrained or enjoined from continuing in business in this state or employing persons herein until such reports have been made.
  2. Any employing unit actively engaged in business in this state which is found delinquent in the payment of contributions by the cabinet, may, after ten (10) days’ written notice by the cabinet sent to such employing unit’s last known address by certified mail notifying such employing unit that this section will be invoked unless such delinquency is satisfied, be restrained or enjoined from continuing in business in this state or employing persons herein until such delinquency has been satisfied or until such employing unit shall have furnished bond with surety approved by the court in a sum equal to the amount of such delinquency, plus any other unpaid contributions due under this chapter and such further sum as the court shall deem adequate to protect the cabinet in the collection of contributions which may become due for the next ensuing six (6) months, said bond to be conditioned upon payment of such judgment and contributions upon such terms and at such time as the court may fix.
  3. Proceedings under the provisions of this section may be instituted upon complaint filed by the cabinet in the Franklin Circuit Court or any other court of competent jurisdiction in accordance with Kentucky Rules of Civil Procedure, except that no bond shall be required of the Commonwealth or the cabinet.

History. Enact. Acts 1958, ch. 4, § 16; 1972, ch. 21, § 17; 1974, ch. 74, Art. VI, § 107(23).

NOTES TO DECISIONS

1. Injunctions.

The legislature in enacting this section’s provision authorizing injunctive proceedings decided that the use of that procedure would have beneficial effects in achieving compliance with the law outweighing any incidental effect it might have offending the purpose of the law, so that the injunction procedure cannot be classified as arbitrary. Washer One, Inc. v. Commonwealth, 482 S.W.2d 590, 1972 Ky. LEXIS 197 ( Ky. 1972 ).

341.270. Determination of employer’s contribution rate.

  1. Except as otherwise provided in this section, each employer’s contribution rate shall be three percent (3%). Effective for employers who become subject to this chapter on or after January 1, 1999, except as otherwise provided in this section, each employer’s contribution rate shall be two and seven-tenths percent (2.7%).
  2. Except as otherwise provided in this section, no subject employer’s contribution rate shall be less than two and seven-tenths percent (2.7%), unless he has been an employer subject to the provisions of this chapter for twelve (12) consecutive calendar quarters ended as of the computation date. In any calendar year in which the rate schedule prescribed in paragraph (3)(a) of this section is in effect, no subject employer who was assigned an entry rate of three percent (3.0%) under the provisions of subsection (1) of this section prior to January 1, 1999, shall have a contribution rate less than two and eight hundred fifty-seven thousandths percent (2.857%), unless subject to this chapter for the minimum time period specified above.
  3. For the calendar year 2001 and each calendar year thereafter, employer contribution rates shall be determined in accordance with “Table A” set out in subsection (4) of this section. For each calendar year, the secretary shall determine the rate schedule to be in effect based upon the “trust fund balance” as of September 30 of the preceding year. If the “trust fund balance”:
    1. Equals or exceeds one and eighteen hundredths percent (1.18%) of the total wages paid in covered employment in the state during the state fiscal year ended as of June 30 of that year, the rates listed in the “Trust Fund Adequacy Rates” schedule of “Table A” shall be in effect;
    2. Equals or exceeds five hundred million dollars ($500,000,000) but is less than the amount required to effectuate the “Trust Fund Adequacy Rates” schedule as provided in paragraph (a) of this subsection, the rates listed in “Schedule A” of “Table A” shall be in effect;
    3. Equals or exceeds three hundred fifty million dollars ($350,000,000) but is less than five hundred million dollars ($500,000,000), the rates listed in “Schedule B” of “Table A” shall be in effect;
    4. Equals or exceeds two hundred fifty million dollars ($250,000,000) but is less than three hundred fifty million dollars ($350,000,000), the rates listed in “Schedule C” of “Table A” shall be in effect;
    5. Equals or exceeds one hundred fifty million dollars ($150,000,000) but is less than two hundred fifty million dollars ($250,000,000), the rates listed in “Schedule D” of “Table A” shall be in effect; and
    6. Is less than one hundred fifty million dollars ($150,000,000), the rates listed in “Schedule E” of “Table A” shall be in effect.
  4. For the calendar year 1982 and each calendar year thereafter, contribution rates shall be determined upon the basis of an individual employer’s reserve ratio as of the computation date and the schedule of rates established under subsection (3) of this section. Except as otherwise provided in this section, the contribution rate for each subject employer for the calendar year immediately following the computation date shall be the rate in that “Schedule” of “Table A,” as set out below, effective with respect to the calendar year, which appears on the same line as his reserve ratio as shown in the “Employer Reserve Ratio” column of the same table.
  5. As used in this section and elsewhere in this chapter, unless the context clearly requires otherwise:
    1. “Trust fund balance” means the amount of money in the unemployment insurance fund, less any unpaid advances made to the state under Section 1201 of the Social Security Act. In determining the amount in the fund as of a given date all money received by the Office of Unemployment Insurance, Department of Workforce Investment, on that date shall be considered as being in the fund on that date;
    2. “Total wages” means all remuneration for services, as defined in KRS 341.030(1) to (7), paid by subject employers;
    3. An employer’s “reserve ratio” means the percentage ratio of his reserve account balance as of the computation date to his taxable payrolls for the twelve (12) consecutive calendar quarters ended as of June 30 immediately preceding the computation date;
    4. For the purposes of this section, an employer’s “reserve account balance” means the amount of contributions credited to his reserve account as of the computation date, less the benefit charges through June 30 immediately preceding the computation date. If benefits charged to an account exceed contributions credited to the account, the account shall be considered as having a debit balance and a reserve ratio of “less than zero”; and
    5. “Computation date” is July 31 of each calendar year prior to the effective date of new rates of contributions.

TABLE A Rate Schedule Employer Trust A B C D E Reserve Fund Ratio Adequacy Rates 8.0% and over 0.000% 0.30% 0.40% 0.50% 0.60% 1.00% 7.0% but under 8.0% 0.000% 0.40% 0.50% 0.60% 0.80% 1.05% 6.0% but under 7.0% 0.008% 0.50% 0.60% 0.70% 0.90% 1.10% 5.0% but under 6.0% 0.208% 0.70% 0.80% 1.00% 1.20% 1.40% 4.6% but under 5.0% 0.508% 1.00% 1.20% 1.40% 1.60% 1.80% 4.2% but under 4.6% 0.808% 1.30% 1.50% 1.80% 2.10% 2.30% 3.9% but under 4.2% 1.008% 1.50% 1.70% 2.20% 2.40% 2.70% 3.6% but under 3.9% 1.308% 1.80% 1.80% 2.40% 2.60% 3.00% 3.2% but under 3.6% 1.508% 2.00% 2.10% 2.50% 2.70% 3.10% 2.7% but under 3.2% 1.608% 2.10% 2.30% 2.60% 2.80% 3.20% 2.0% but under 2.7% 1.708% 2.20% 2.50% 2.70% 2.90% 3.30% 1.3% but under 2.0% 1.808% 2.30% 2.60% 2.80% 3.00% 3.40% 0.0% but under 1.3% 1.908% 2.40% 2.70% 2.90% 3.10% 3.50% -0.5% but under-0.0% 6.500 % 6.50% 6.75% 7.00% 7.25% 7.50% -1.0% but under-0.5% 6.750 % 6.75% 7.00% 7.25% 7.50% 7.75% -1.5% but under-1.0% 7.000% 7.00% 7.25% 7.50% 7.75% 8.00% -2.0% but under-1.5% 7.250% 7.25% 7.50% 7.75% 8.00% 8.25% -3.0% but under-2.0% 7.500 % 7.50% 7.75% 8.00% 8.25% 8.50% -4.0% but under-3.0% 7.750% 7.75% 8.00% 8.25% 8.50% 8.75% -6.0% but under-4.0% 8.250% 8.25% 8.50% 8.75% 9.00% 9.25% -8.0% but under-6.0% 8.500% 8.50% 8.75% 9.00% 9.25% 9.50% Less than-8.0%. 9.000% 9.00% 9.25% 9.50% 9.75% 10.00%

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History. 4748g-7: amend. Acts 1942, ch. 19, §§ 5, 14; 1942, ch. 20, §§ 2, 8; 1948, ch. 216, § 6; 1950, ch. 206, § 1; 1952, ch. 154, § 9; 1958, ch. 4, § 6; 1962, ch. 223, § 1; 1972, ch. 21, § 18; 1974, ch. 74, Art. VI, § 107(23), (31); 1978, ch. 389, § 15, effective July 1, 1978; 1980, ch. 67, § 1, effective January 1, 1980; 1980, ch. 188, § 270, effective July 15, 1980; 1980, ch. 385, § 4, effective July 15, 1980; 1982, ch. 261, § 2, effective January 1, 1982; 1984, ch. 1, § 2, effective July 13, 1984; 1996, ch. 266, § 7, effective July 15, 1996; 1998, ch. 167, § 1, effective July 15, 1998; 2000, ch. 547, § 10, effective July 14, 2000; 2006, ch. 211, § 144, effective July 12, 2006; 2010 (1st Ex. Sess.), ch. 5, § 4, effective August 28, 2010; 2019 ch. 146, § 60, effective June 27, 2019.

Compiler’s Notes.

Section 1201 of the Social Security Act, referred to in subsection (5)(a), is compiled as 42 USCS § 1321.

NOTES TO DECISIONS

  1. Application.
  2. Lien.
  3. Impairment of Contract Obligations.
1. Application.

The 1982 amendments to KRS 341.030(6) and this section made by Chapter 261 did not invalidate, release, or extinguish any contract executed by contractors prior to April 1, 1982, and was not unconstitutional as applied to such contracts. Adams v. Associated General Contractors, Inc., 656 S.W.2d 729, 1983 Ky. LEXIS 299 ( Ky. 1983 ).

2. Lien.

The contribution required of the employer to the Commission by this section is a tax lien on a par with other tax liens. International Harvester Co. v. Dyer's Adm'r, 297 Ky. 55 , 178 S.W.2d 966, 1944 Ky. LEXIS 669 ( Ky. 1944 ).

3. Impairment of Contract Obligations.

The amendments to KRS 341.030(6) and this section made by Acts 1982, ch. 261, which increased the wage base and tax rate payable by employers for purposes of unemployment insurance contributions, in no way impaired the rights and obligations under any contract. Adams v. Associated General Contractors, Inc., 656 S.W.2d 729, 1983 Ky. LEXIS 299 ( Ky. 1983 ).

It is within the power of the General Assembly to levy taxes upon employers for the purpose of their contribution to the Unemployment Insurance Trust Fund and if a tax assessed by the state is within the taxing power of the state it does not unconstitutionally impair the obligation of a contract. Adams v. Associated General Contractors, Inc., 656 S.W.2d 729, 1983 Ky. LEXIS 299 ( Ky. 1983 ).

Cited:

Barnes v. Stearns Coal & Lumber Co., 295 Ky. 812 , 175 S.W.2d 498, 1943 Ky. LEXIS 339 ( Ky. 1943 ); Fritz v. Commonwealth, 309 Ky. 637 , 218 S.W.2d 659, 1949 Ky. LEXIS 776 ( Ky. 1949 ); Commonwealth ex rel. Division of Unemployment Ins. v. Kendall, 313 Ky. 735 , 233 S.W.2d 511, 1950 Ky. LEXIS 972 ( Ky. 1950 ); Cole C Kentucky Unemployment Ins. Com., 315 S.W.2d 457, 1958 Ky. LEXIS 325 ( Ky. 1958 ).

Opinions of Attorney General.

The 1982 amendment increasing the rate of the unemployment insurance tax on employers is not retroactive merely because the base period extends to January 1, 1982, since the tax covers the concurrent calendar year in which it was amended, nor does increasing the rate impair the obligation of contracts, because the terms of existing contracts are still the same and the obligation has not been released or extinguished. Even if such a statute were to impair the obligation of an existing contract, such is permissible when the statute is enacted to safeguard the vital interests of the people under the state’s police powers. OAG 82-362 .

341.272. Contribution rate of new employer engaged in contract construction trades.

  1. Notwithstanding any section of this chapter to the contrary, on or after July 15, 1984, any new domestic corporation, or any foreign corporation authorized to do business in this state, or any foreign corporation active in conjunction with a domestic corporation in a joint venture, partnership or other legal entity engaged in the contract construction trades shall pay contributions equal to the maximum rate of contributions payable under the rate schedule in effect for any given calendar year as determined by KRS 341.270 ; and, such maximum rate of contributions shall remain in effect until the employer has employed persons in this state for not less than twelve (12) consecutive calendar quarters ending as of June 30 immediately preceding the computation date. Thereafter, such employer’s contribution rate shall be determined in accordance with the provisions of subsection (4) of KRS 341.270 .
  2. On or after January 1, 1989, any new domestic or foreign proprietorship or partnership engaged in the contract construction trades shall be subject to the provisions of subsection (1) of this section.

History. Enact. Acts 1984, ch. 221, § 1, effective July 13, 1984; 1988, ch. 106, § 5, effective July 15, 1988; 2010 (1st Ex. Sess.), ch. 5, § 5, effective August 28, 2010.

NOTES TO DECISIONS

1. Correction of Assessments.

In the absence of special circumstances, the Kentucky Unemployment Insurance Commission could not be estopped from requiring the payment of additional unemployment contributions necessitated by the application of an erroneous initial assessment at a much lower rate than provided in this section. J. Branham Erecting & Steel Serv. Co. v. Kentucky Unemployment Ins. Comm'n, 880 S.W.2d 896, 1994 Ky. App. LEXIS 63 (Ky. Ct. App. 1994).

Under KRS 341.125(1), the Kentucky Unemployment Insurance Commission has the statutory authority to correct errors in assessments. J. Branham Erecting & Steel Serv. Co. v. Kentucky Unemployment Ins. Comm'n, 880 S.W.2d 896, 1994 Ky. App. LEXIS 63 (Ky. Ct. App. 1994).

341.275. Financing benefits for nonprofit organizations.

  1. For the purpose of this section, a nonprofit organization is an organization (or group of organizations) described in Section 501(c)(3) of the United States Internal Revenue Code which is exempt from income tax under Section 501(a) of such code. For the purpose of this section, “cabinet” shall mean the Education and Workforce Development Cabinet and “secretary” shall mean the secretary of the Education and Workforce Development Cabinet.
  2. Any nonprofit organization which, pursuant to KRS 341.070(4), is, or becomes, a subject employer shall pay contributions under the provisions of KRS 341.270 , unless it elects, in accordance with this section, to pay to the cabinet for the fund an amount equal to the amount of regular benefits and of one-half (1/2) of the extended benefits paid to workers for weeks of unemployment that is attributable to service in the employ of the nonprofit organization, performed during the effective period of the election but only if the employer is the worker’s most recent employer. No employer shall be deemed to be the most recent employer unless the eligible worker to whom benefits are payable shall have worked for that employer in each of ten (10) weeks whether or not consecutive.
    1. Any nonprofit organization which is, or becomes, a subject employer on July 1, 1972, may elect to become liable for payments in lieu of contributions for a period of not less than the remainder of 1972 and the calendar year of 1973, provided it files with the cabinet a written notice of its election within the thirty (30) day period immediately following such date.
    2. Any nonprofit organization which becomes a subject employer after July 1, 1972, may elect to become liable for payments in lieu of contributions for a period of not less than the period of subjectivity during the year in which such subjectivity begins and the following calendar year by filing a written notice of its election with the cabinet not later than thirty (30) days immediately following the date of the determination of such subjectivity.
    3. Any nonprofit organization which makes an election in accordance with paragraph (a) or (b) of this subsection will continue to be liable for payments in lieu of contributions until it files with the secretary a written notice terminating its election not later than thirty (30) days prior to the beginning of the calendar year for which such termination shall first be effective, except that liability for payments in lieu of contributions shall continue thereafter with respect to wages paid prior to the effective date of such termination.
    4. Any nonprofit organization which has been paying contributions under this chapter for a period subsequent to July 1, 1972, may change to a reimbursable basis by filing with the cabinet not later than thirty (30) days prior to the beginning of any calendar year a written notice of election to become liable for payments in lieu of contributions. Such election shall not be terminable by such organization for that and the following year.
    5. The secretary may for good cause extend the period within which a notice of election, or a notice of termination, must be filed and may permit an election to be retroactive but not any earlier than with respect to benefits paid after December 31, 1969.
    6. The secretary shall notify each nonprofit organization of any determination which may be made of its status as an employer and of the effective date of any election which it makes and of any termination of such election. Such determinations shall be subject to appeal and review in accordance with the provisions of KRS 341.430(2).
  3. Payments in lieu of contributions shall be made in accordance with the provisions of this subsection.
    1. At the end of each calendar quarter or at the end of any other period as determined by the secretary, the cabinet shall bill each nonprofit organization (or group of such organizations) which has elected to make payments in lieu of contributions for an amount equal to the full amount of regular benefits plus one-half (1/2) of the amount of extended benefits paid during such quarter plus any prior period adjustments, which are attributable to service performed in covered employment in the employ of such organization plus interest on the total amount billed at the average rate of earnings in the unemployment insurance fund for the prior calendar year. All interest collected under this subsection shall be credited to the unemployment insurance fund.
    2. Payment of any bill rendered under paragraph (a) shall be made not later than thirty (30) days after such bill was mailed to the last known address of the nonprofit organization or was otherwise delivered to it, unless there has been an application for review in accordance with paragraph (d) of this subsection.
    3. Payments made by any nonprofit organization under the provisions of this subsection shall not be deducted or deductible, in whole or in part, from the remuneration of workers in the employ of the organization.
    4. The amount due specified in any bill from the secretary shall be conclusive on the organization unless, not later than fifteen (15) days after the bill was mailed to its last known address or otherwise delivered to it, the organization files an appeal to the commission setting forth the grounds for such appeal. Proceedings on appeal to the commission from the amount of a bill rendered under this subsection shall be in accordance with the provisions of KRS 341.430 , and the decision of the commission shall be subject to review under the provisions of KRS 341.460(1).
    5. Past-due payments of amounts in lieu of contributions shall be subject to the same interest, penalties, collection service, and lien provisions that, pursuant to KRS 341.300 to 341.310 , apply to past-due contributions.
    1. The secretary may, in accordance with regulations prescribed by the cabinet, require any nonprofit organization that elects to become liable for payments in lieu of contributions to deposit with the cabinet, within thirty (30) days after the effective date of its election as a condition thereof, money equal to two percent (2%) of the organization’s total wages paid for employment as defined in KRS 341.050(1)(e) for the four (4) calendar quarters immediately preceding the effective date of such election. If the nonprofit organization did not pay wages in each of such four (4) calendar quarters, the amount of the deposit shall be as determined by the secretary. (4) (a) The secretary may, in accordance with regulations prescribed by the cabinet, require any nonprofit organization that elects to become liable for payments in lieu of contributions to deposit with the cabinet, within thirty (30) days after the effective date of its election as a condition thereof, money equal to two percent (2%) of the organization’s total wages paid for employment as defined in KRS 341.050(1)(e) for the four (4) calendar quarters immediately preceding the effective date of such election. If the nonprofit organization did not pay wages in each of such four (4) calendar quarters, the amount of the deposit shall be as determined by the secretary.
    2. Money deposited in accordance with this subsection shall be retained by the cabinet in an escrow account until all possible liability to the fund under the election is terminated, at which time it shall be returned to the organization, less any deductions as hereinafter provided. The cabinet may deduct from the money deposited under this subsection by a nonprofit organization to the extent necessary to satisfy any due and unpaid payments in lieu of contributions and any applicable interest and penalties provided for in subsection (3)(e) of this section. The secretary shall require the organization within thirty (30) days following any deduction from a money deposit under the provisions of this subsection to deposit sufficient additional money to make whole the organization’s deposit at the prior level. The secretary may, at any time, review the adequacy of the deposit made by any organization. If, as a result of such review, he determines that an adjustment is necessary, he shall require the organization to make additional deposit within thirty (30) days of written notice of his determination or shall return to it such portion of the deposit as he no longer considers necessary, whichever action is appropriate.
    3. If any nonprofit organization fails to make a deposit, or to increase or make whole the amount of a previously made deposit, as provided under this subsection, the secretary may terminate such organization’s election to make payments in lieu of contributions and such termination shall continue for not less than the remainder of that calendar year and the following calendar year beginning with the quarter in which such termination becomes effective; provided, that the secretary may extend for good cause the applicable filing, deposit, or adjustment period by not more than sixty (60) days.
  4. If any nonprofit organization is delinquent in making payments in lieu of contributions as required under subsection (3) of this section, the secretary may terminate such organization’s election to make payments in lieu of contributions as of the beginning of the next calendar year, and such termination shall be effective for that and the next calendar year.
  5. Notwithstanding any other section of this chapter, no employing unit electing to make payments in lieu of contributions under the provisions of this section shall be entitled to relief of benefit charges.

History. Enact. Acts 1972, ch. 21, § 19; 1974, ch. 74, Art. VI, §§ 101, 107(21), (23); 1978, ch. 389, § 16, effective July 1, 1978; 1996, ch. 266, § 8, effective July 15, 1996; 1996, ch. 271, § 19, effective July 15, 1996; 2006, ch. 211, § 145, effective July 12, 2006; 2009, ch. 11, § 77, effective June 25, 2009; 2010 (1st Ex. Sess.), ch. 5, § 6, effective August 28, 2010.

Compiler’s Notes.

Section 501 of the U.S. Internal Revenue Code, referred to in subsection (1), is compiled as 26 USCS § 501.

341.277. Financing benefits for employees of governmental entities.

  1. Any governmental entity which, pursuant to KRS 341.070 (3), is or becomes a subject employer shall pay contributions under the provisions of KRS 341.270 , unless it elects, in accordance with this section, to pay the cabinet for the fund an amount equal to the amount of all regular benefits plus all extended benefits paid to workers for compensable weeks of unemployment occurring on or after January 1, 1979, and for all regular benefits and one-half (1/2) of extended benefits paid to workers for compensable weeks of unemployment occurring prior to such date that is attributable to service performed in covered employment in the employ of such governmental entity during the effective period of such election but only if the employer is the worker’s most recent employer. No employer shall be deemed to be the most recent employer unless the eligible worker to whom benefits are payable shall have worked for that employer in each of ten (10) weeks whether or not consecutive.
    1. Any governmental entity, which is or becomes a subject employer, may elect to become liable for payment in lieu of contributions for a period of not less than the calendar year in which such subjectivity begins and for the following calendar year provided it files with the cabinet a written notice of its election within thirty (30) days immediately following the date of the determinations of such subjectivity; or
    2. Any governmental entity which has paid contributions under the provisions of KRS 341.270 may change to a reimbursable basis by filing with the cabinet a written notice of its election not later than thirty (30) days prior to the beginning of any calendar year to make payments in lieu of contributions for a period of not less than two (2) calendar years following the effective date of such election.
    3. Any governmental entity which elects to make payments in lieu of contributions, in accordance with paragraph (a) or (b) of this subsection, shall continue to be liable for payments in lieu of contributions until it files with the secretary a written notice terminating its election not later than thirty (30) days prior to the beginning of the calendar year for which such termination shall become effective except that liability for payments in lieu of contributions shall continue thereafter with respect to wages paid prior to the effective date of such termination.
    4. The secretary may for good cause extend the period within which a notice of election must be filed and may permit the effective date of such election to be retroactive.
    5. The secretary shall notify each governmental entity of any determination made as to its status as a subject employer, pursuant to KRS 341.070 and the effective date of any election or termination made pursuant to this subsection which determinations shall be subject to appeal and review in accordance with the provisions of KRS 341.430(2).
  2. Payment in lieu of contributions shall be made in accordance with the provisions of this subsection.
    1. At the end of each calendar quarter or at the end of any other period as determined by the secretary, the cabinet shall bill each governmental entity (or group of governmental entities) which has elected to make payments in lieu of contributions an amount equal to all regular benefits and all extended benefits paid during such quarter for compensable weeks occurring on or after January 1, 1979, plus any prior period adjustments which are attributable to service performed in covered employment in the employ of such governmental entity plus interest on the total amount billed at the average rate of earnings in the unemployment insurance fund for the prior calendar year. All interest collected under this subsection shall be credited to the unemployment insurance fund.
    2. Payment of any bill rendered under paragraph (a) of this subsection shall be made not later than thirty (30) days after such bill was mailed to the last known address of the governmental entity or was otherwise delivered to it, unless there has been an application for review in accordance with paragraph (d) of this subsection.
    3. Payments made by any governmental entity under the provisions of this subsection shall not be deducted or deductible, in whole or in part, from the remuneration of workers in the employ of the governmental entity.
    4. The amount due specified in any bill from the secretary shall be conclusive on the governmental entity unless, not later than fifteen (15) days after the bill was mailed to its last known address or otherwise delivered to it, the governmental entity files an appeal to the commission, setting forth the grounds for such appeal. Proceedings on appeal to the commission from the amount of a bill rendered under this subsection shall be in accordance with the provisions of KRS 341.430 and the decision of the commission shall be subject to review under the provisions of KRS 341.460(1).
    5. Past-due payments of amounts in lieu of contributions shall be subject to the same interest, penalties, and collection provisions that, pursuant to KRS 341.300 , apply to past due contributions.
    1. The secretary may, in accordance with regulations prescribed by the commission, require any governmental entity that elects to become liable for payments in lieu of contributions to deposit with the cabinet within thirty (30) days after the effective date of its election as a condition thereof, money equal to two percent (2%) of the governmental entity’s total wages paid for employment as defined in KRS 341.050(1)(d) for the four (4) calendar quarters immediately preceding the effective date of such election. If the entity did not pay wages in each of such four (4) quarters, the amount of deposit, if required, shall be determined by the secretary. (3) (a) The secretary may, in accordance with regulations prescribed by the commission, require any governmental entity that elects to become liable for payments in lieu of contributions to deposit with the cabinet within thirty (30) days after the effective date of its election as a condition thereof, money equal to two percent (2%) of the governmental entity’s total wages paid for employment as defined in KRS 341.050(1)(d) for the four (4) calendar quarters immediately preceding the effective date of such election. If the entity did not pay wages in each of such four (4) quarters, the amount of deposit, if required, shall be determined by the secretary.
    2. Provided, however, that the amount of money required to be deposited under this paragraph shall not exceed the amount for which any contributing employer would be liable if subject to the maximum contribution rate applicable to the annual taxable payroll.
    3. Money deposited in accordance with this subsection shall be retained by the cabinet in an escrow account until all possible liability to the fund under the election is terminated, at which time it shall be returned to the governmental entity, less any deductions as hereinafter provided. The cabinet may deduct from the money deposited under this subsection by a governmental entity to the extent necessary to satisfy any due and unpaid payments in lieu of contributions and any applicable interest and penalties provided for in paragraph (e) of subsection (3) of this section. The secretary shall require the governmental entity within thirty (30) days following any deduction from a money deposit under the provisions of this subsection to deposit sufficient additional money to make whole the governmental entity’s deposit at the prior level. The secretary may, at any time, review the adequacy of the deposit made by any governmental entity. If, as a result of such review, he determines that an adjustment is necessary, he shall require the governmental entity to make an additional deposit within thirty (30) days of written notice of his determination or shall return to it such portion of the deposit as he no longer considers necessary, whichever action is appropriate.
    4. If any governmental entity fails to make a deposit, or to increase or make whole the amount of a previously made deposit, as provided under this subsection, the secretary may terminate such governmental entity’s election to make payments in lieu of contributions and such termination shall continue for not less than the remainder of that calendar year and the following calendar year beginning with the quarter in which such termination becomes effective; provided, that the secretary may extend for good cause the applicable filing, deposit or adjustment period by not more than sixty (60) days.
  3. If any governmental entity is delinquent in making payments in lieu of contributions as required under subsection (3) of this section, the secretary may terminate such governmental entity’s election to make payments in lieu of contributions as of the beginning of the next calendar year, and such termination shall be effective for that and the next calendar year.
  4. Notwithstanding any other section of this chapter, no employing unit electing to make payments in lieu of contributions under the provisions of this section shall be entitled to relief of benefit charges.

History. Enact. Acts 1978, ch. 389, § 17, effective July 1, 1978; 1996, ch. 266, § 9, effective July 15, 1996; 2010 (1st Ex. Sess.), ch. 5, § 7, effective August 28, 2010.

NOTES TO DECISIONS

  1. Application.
  2. Erroneous Payments.
1. Application.

The proviso in subsection (3) of KRS 341.530 that no reimbursing employer shall be relieved of charges by reason of subsection (3) can only be sensibly read as a part of that subsection, and may not be used to alter the language of the other subsections of the statute. Under this section, a reimbursing employer is not relieved of the direct financial responsibility to the division just because the former employee voluntarily quit, was discharged for misconduct, or continued employment; however, this subsection does not apply to situations where benefits were paid to a former employee of a reimbursing employer due to departmental error. Kentucky Unemployment Ins. Com. v. Kaco Unemployment Ins. Fund, Inc., 793 S.W.2d 845, 1990 Ky. App. LEXIS 91 (Ky. Ct. App. 1990).

2. Erroneous Payments.

Subsection (2) of KRS 341.550 applies to all benefits paid through error, and therefore the trial court properly held that unemployment benefits erroneously paid for former employees of employers who elect to reimburse the Division of Unemployment Insurance for benefits paid to their former employees in lieu of paying contributions to the division are charged to the pooled account, and not the reimbursing employers. Kentucky Unemployment Ins. Com. v. Kaco Unemployment Ins. Fund, Inc., 793 S.W.2d 845, 1990 Ky. App. LEXIS 91 (Ky. Ct. App. 1990).

Opinions of Attorney General.

If the obligations to reimburse the fund are considered as expenses of an office, due and payable when received, regardless of what particular person is in office at the time, the office involved should be able to keep up the required payments to the fund. OAG 79-235 .

Payments when due and payable under either the reimbursement or contribution method would have to be made from the 75 percent account of the particular person in office at that time. OAG 79-235 .

Reimbursement payments would have to be considered as an expense of the office and not of the individual office holder. OAG 79-235 .

The choice of payment by contribution or reimbursement is exclusively determined by the governmental entity and the Department (now Cabinet) for Human Resources can terminate the entity’s election to pay by the reimbursement method only when certain statutory procedures are not followed. OAG 79-235 .

The responsibility for providing the protection afforded by KRS Chapter 341 rests with the various units of county government because they employ persons covered by the act and persons under the act are covered because they are in covered employment and not because they work for a particular individual or officer. OAG 79-235 .

341.280. Payment of contributions by employee. [Repealed.]

Compiler’s Notes.

This section (4748g-7) was repealed by Acts 1942, ch. 20, §§ 3, 9.

341.281. Allocation of benefit cost to reimbursing employers.

  1. Each nonprofit organization that has elected to make payments in lieu of contributions under KRS 341.275 shall pay to the cabinet for the fund the amount of regular benefits plus the amount of one-half (1/2) of extended benefits paid that are attributable to service performed in covered employment in the employ of such nonprofit employer. Each governmental entity that has elected to make payments in lieu of contributions under the provisions of KRS 341.277 shall pay to the cabinet for the fund the amount of all regular benefits plus all extended benefits paid for compensable weeks occurring after January 1, 1979, attributable to service performed in covered employment.
  2. Two (2) or more employers that have become liable for payments in lieu of contributions, in accordance with the provisions of KRS 341.275 , may file a joint application to the secretary for the establishment of a group account for the purpose of sharing the cost of benefits paid that are attributable to service in the employ of such employers. Each such application shall identify and authorize a group representative to act as the group’s agent for the purposes of this subsection. Upon his approval of the application, the secretary shall establish a group account for such employers effective as of the beginning of the calendar quarter in which he receives the application and shall notify the group’s representative of the effective date of the account. Such account shall remain in effect for not less than two (2) years and thereafter until terminated at the discretion of the secretary or upon application by the group. Upon establishment of the account, each member of the group shall be jointly and severally liable for payment to the fund in lieu of contributions with respect to each calendar quarter in an amount equal to the total benefits paid in such quarter that are attributable to service performed in the employ of any or all members of the group. The secretary shall prescribe such procedures as he deems necessary with respect to applications for establishment, maintenance and termination of group accounts that are authorized by this subsection, for addition of new members to, and withdrawal of active members from, such accounts, and for the determination of the amounts that are payable under this subsection and the time and manner of such payments.
  3. Two (2) or more governmental entities that have become liable for payment in lieu of contributions, in accordance with the provisions of KRS 341.277 , may file a joint application to the secretary for the establishment of a group account of governmental entities subject to all of the provisions of subsection (2) of this section.

History. Enact. Acts 1972, ch. 21, § 20; 1974, ch. 74, Art. VI, § 107(23), (31); 1978, ch. 389, § 18, effective July 1, 1978; 1982, ch. 261, § 3, effective July 15, 1982.

Opinions of Attorney General.

By the express terms of subsection (3) of this section and subdivision (1)(k) of KRS 61.870 the KACo Unemployment Insurance Fund is a public agency, and is therefore subject to the Open Records Act. OAG 93-65 .

341.282. Financing benefits for state employees.

The amount payable to meet the Commonwealth’s obligation as an employer under this chapter shall be paid from the general fund of the state or such other administrative funds as might properly be designated by the secretary of the Finance and Administration Cabinet or successor thereto.

History. Enact. Acts 1972, ch. 21, § 21; 1974, ch. 74, Art. II, § 9(2); 1974, ch. 74, Art. VI, § 107(23), (31); 1978, ch. 389, § 19, effective July 1, 1978.

Opinions of Attorney General.

The criteria for coverage by the unemployment compensation program is whether employees, their employers, or both parties, contribute to the fund under this section, so that public elementary and secondary school teachers are excluded from coverage since no contribution is made to the fund by the state. OAG 75-219 .

341.285. Transition provision. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 21, § 22; 1978, ch. 389, § 20, effective July 1, 1978) was repealed by Acts 1998, ch. 167, § 12, effective July 15, 1998.

341.290. Contributions from employers not subject to federal unemployment tax act. [Repealed.]

Compiler’s Notes.

This section (4748g-7: amend. Acts 1950, ch. 206, § 1; 1962, ch. 207, § 3) was repealed by Acts 1972, ch. 21, § 39.

341.295. Use of moneys in unemployment compensation administration fund.

  1. All fines, penalties, and interest on delinquent contributions collected under KRS 341.300 shall be credited to the unemployment compensation administration fund to be used for the payment of interest on advances under Title XII of the Social Security Act, for the repayment of money, including any interest thereon, received from any source related to the payment of interest on such advances, and for the administration of this chapter. The State Treasurer shall maintain a separate record of all money received for the unemployment compensation administration fund under this section. This money shall not be expended or available for expenditure in any manner that would permit its substitution for, or a corresponding reduction in, federal funds that would be available in its absence to finance expenditures for the administration of this chapter.
  2. But nothing in this chapter shall prevent this money from being used as a revolving fund to cover necessary and proper expenditures for which federal funds have been requested but not received, subject to the charging of such expenditures against such funds when received, or to supplement federal funds which are, in the opinion of the secretary, insufficient to properly administer this chapter; provided, no more than twenty-five percent (25%) of the balance of this account may be used in any year for the purposes authorized under this subsection if interest on advances under Title XII of the Social Security Act is due and owing or if the repayment of money, including any interest thereon, received from any source related to the payment of interest on such advances is due and owing.
  3. If interest on advances under Title XII of the Social Security Act and the repayment of money, including any interest thereon, received from any source related to the payment of interest on such advances are not due and owing, the secretary may also authorize to be charged against such money any expenditures he deems proper and desirable for the administration of this chapter and replace any money necessary under the provisions of KRS 341.610 , if no other funds are available or can properly be used to finance such expenditures. The money heretofore collected and credited to the unemployment compensation contingent fund shall be transferred to the unemployment compensation administration fund and shall be available for expenditure under the provisions of this section.

History. Enact. Acts 1948, ch. 216, § 7; 1950, ch. 206, § 1; 1954, ch. 177, § 1; 1974, ch. 74, Art. VI, § 107(21); 1984, ch. 326, § 4, effective July 13, 1984; 2012, ch. 52, § 2, effective April 11, 2012.

Compiler’s Notes.

Title XII of the Social Security Act, referred to throughout the section, is compiled as 42 USCS § 1321 et seq.

Opinions of Attorney General.

The Commonwealth may legally incur the obligation to pay the required interest on Title XII advancements to the state’s unemployment insurance fund since such interest can be paid from funds in the Penalty and Interest Account,” a nonappropriations dollars account. However, should the “P and I account” become insufficient there would be no Ky. Const., §§ 49 and 50 problems created since the mere possibility of a liability against general revenues does not offend the constitution. OAG 82-541 .

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, D, 7, (1) at 874.

341.296. Investment of administration fund.

Such money in the unemployment compensation administration fund collected under KRS 341.295 , shall be invested by the State Treasurer in bonds and other interest-bearing obligations of the United States of America, in such amounts, and in such of the securities herein authorized, as the secretary may in his discretion prescribe and direct; provided, however, such fund as may be accumulated under the above section may be invested by the Sinking Fund Commission, upon the request of the secretary, in revenue bonds issued by the State Property and Buildings Commission. The State Treasurer shall dispose of securities or other property belonging to such fund only under the direction of the secretary.

History. Enact. Acts 1948, ch. 216, § 20; 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, § 107(21); 1980, ch. 188, § 271, effective July 15, 1980.

341.300. Interest on unpaid contributions — Collection of contributions, interest, or penalties.

  1. Contributions unpaid on the date on which they are due and payable, as prescribed by the secretary, shall be subject to interest at the rate of one and five-tenths percent (1.5%) per month or fraction thereof, not to exceed ninety percent (90%) of the amount of such contributions, from and after such date until payment is received by the Office of Unemployment Insurance, Department of Workforce Investment irrespective of whether such delinquency has been reduced to a judgment or not as provided in subsection (2) of this section or is the subject of an administrative appeal or court action. The interest charged for a month, in which the unpaid contributions remain unpaid, shall be considered accrued and therefore due and owing on the first day after the last day of the month in which the balance is due. Such interest shall be paid into the unemployment compensation administration fund.
  2. If, after due notice, any subject employer defaults in any payment of contributions, interest or penalties thereon, the amount due shall be collected by a civil action instituted in the Franklin Circuit Court or the Franklin District Court depending upon the jurisdictional amount in controversy including interest and penalties in the name of the state, and the subject employer adjudged in default shall pay the costs of the action. Civil actions brought under this section shall be heard by the court, without the intervention of a jury, at the earliest possible date, and shall be entitled to preference upon the calendar of the court over all other civil actions except petitions for judicial review under this chapter and cases arising under the workers’ compensation law.
  3. At or after the commencement of an action under subsection (2) of this section, attachment may be had against the property of the liable subject employer for such contributions, interest, and penalties, without the execution of a bond, or after judgment has been entered an execution may be issued against the property of such employer without the execution of a bond.
  4. An action for the recovery of contributions, interest, or penalties under this section shall be barred and any lien therefor shall be canceled and extinguished unless collected or suit for collection has been filed within ten (10) years from the due date of such contributions, except, in the case of the filing of a false or fraudulent report, the contributions due shall not be barred and may at any time be collected by the methods set out in this chapter, including action in a court of competent jurisdiction.

HISTORY: 4748g-8: amend. Acts 1948, ch. 216, § 8; 1950, ch. 206, § 1; 1952, ch. 154, § 10; 1972, ch. 21, § 23; 1974, ch. 74, Art. VI, § 107(23), (31); 1978, ch. 389, § 25, effective July 1, 1978; 1986, ch. 26, § 4, effective July 15, 1986; 2006, ch. 211, § 146, effective July 12, 2006; 2007, ch. 62, § 2, effective June 26, 2007; 2018 ch. 134, § 2, effective July 14, 2018; 2019 ch. 146, § 61, effective June 27, 2019.

NOTES TO DECISIONS

1. Penalty.

The charge imposed by this section, for failure to pay past-due contributions, constitutes a penalty, rather than interest. Kentucky ex rel. Unemployment Compensation Com. v. Farmers Bank & Trust Co., 139 F.2d 266, 1943 U.S. App. LEXIS 2259 (6th Cir. Ky. 1943 ), disapproved, Simonson v. Granquist, 369 U.S. 38, 82 S. Ct. 537, 7 L. Ed. 2d 557, 1962 U.S. LEXIS 2225 (U.S. 1962).

Cited:

Louisville Title Mortg. Co. v. Commonwealth, 299 Ky. 224 , 184 S.W.2d 963, 1944 Ky. LEXIS 1041 ( Ky. 1944 ); Fritz v. Commonwealth, 309 Ky. 637 , 218 S.W.2d 659, 1949 Ky. LEXIS 776 ( Ky. 1949 ).

Opinions of Attorney General.

The Commonwealth may legally incur the obligation to pay the required interest on Title XII advancements to the state’s unemployment insurance fund since such interest can be paid from funds in the “Penalty and Interest Account,” a nonappropriations dollars account. However, should the “P and I account” become insufficient there would be no Const., §§ 49 and 50 problems created since the mere possibility of a liability against general revenues does not offend the constitution. OAG 82-541 .

Research References and Practice Aids

ALR

Construction, application, and effect, with respect to social security and unemployment compensation taxes, of statutes imposing penalties for tax evasion or default. 22 A.L.R.3d 8.

341.301. Penalty for payment with nonnegotiable instrument.

  1. If any check tendered to the cabinet in payment of any contribution or penalty due under this chapter or as restitution for the overpayment of benefits is not paid when presented to the drawee bank for payment, there shall be paid as a penalty by the party who tendered the check, upon notice and demand of the cabinet, an amount equal to ten percent (10%) of such check. The penalty under this section shall not be less than ten dollars ($10) or more than one hundred dollars ($100).
  2. If the party who tendered the check demonstrates to the cabinet’s satisfaction that failure to pay the check resulted from error by other parties, then the cabinet shall waive the penalty.
  3. Penalties collected under this section shall be credited to the unemployment compensation administration fund.

History. Enact. Acts 1986, ch. 26, § 9, effective July 15, 1986.

341.305. Service of notice or process and action against nonresident employing unit or resident employing unit removing from state.

Any employing unit which is not a resident of this state and which exercises the privilege of having one or more individuals perform service for it within this state, and any resident employing unit which exercises that privilege and thereafter removes from this state, shall be deemed thereby to appoint the Secretary of State as its agent and attorney for the acceptance of process in any civil action, as provided in KRS 341.300 and 341.310 . In instituting such an action against any such employing unit the secretary shall cause such process or notice to be filed with the Secretary of State and such service shall be sufficient service upon such employing unit, and shall be of the same force and validity as if served upon it personally within this state; provided, that, the secretary shall forthwith send notice of the service of such process or notice, together with a copy thereof, by certified mail, return receipt requested, to such employing unit at its last known address and such return receipt, the secretary’s affidavit of compliance with the provisions of this section, and a copy of the notice of service shall be appended to the original of the process filed in the court in which such action is pending.

History. Enact. Acts 1954, ch. 177, § 9; 1974, ch. 74, Art. VI, § 107(1); 1974, ch. 315, § 71; 1980, ch. 114, § 94, effective July 15, 1980.

341.310. Lien on employer’s property for contributions.

  1. A lien on a parity with state, county, and municipal ad valorem tax liens, and superior to the lien of any mortgage or other encumbrance heretofore or hereafter created is hereby created in favor of the cabinet upon all property of any subject employer from whom contributions, interest or penalties are or may hereafter become due. The lien shall commence from such time as any assessment becomes delinquent and it shall continue until the amount of the original assessment and any subsequent assessments of liability for contributions, interest, penalties or fees are fully paid. The lien shall attach to all interest in property, either real or personal, then owned or subsequently acquired by the person against whom the assessment is made. The cabinet may file notice of the lien with the county clerk of any county or counties in which the subject employer’s business or residence is located, or in any county in which the subject employer has interest in property and such notice shall be recorded in the same manner as notices of lis pendens are and the file shall be designated “miscellaneous state tax liens.” Such recordation shall constitute notice of both the original assessment and all subsequent assessments of liability against the same subject employer. Upon request, the cabinet shall disclose the specific amount of liability at a given date to any interested party legally entitled to such information. The notice, when so filed, shall be conclusive notice to all persons of the lien on the property having legal situs in that county, except that nothing in this chapter shall be construed to alter or change in any way the law relative to the rights and duties of a holder in due course as provided in KRS Chapter 355, Art. 3, or affect the rights of any person taking the property or a lien thereon for value without actual or constructive notice. The clerk shall be entitled to a fee pursuant to KRS 64.012 for filing the lien and the subsequent release or partial release, and said fee shall become a part of the lien as an added cost of the delinquent subject employer to be paid by him as a part of the amount necessary to release the lien and shall not be the responsibility of the Commonwealth.
  2. In addition and as an alternative to any other remedy, the secretary may enforce the lien by petition in the name of this state to the Franklin Circuit Court, if the ministerial acts necessary to enforce the lien by the sale of the liened property or any part of it are performed by the appropriate officers of the Circuit Court of the county in which the property is situated under the direction of and reporting to the Franklin Circuit Court. The manner of enforcement shall be the same as that provided for the enforcement of other tax liens.
    1. The secretary may issue a certificate of release of lien upon the furnishing of a corporate surety bond satisfactory to the secretary by such employing unit in the amount of one hundred twenty-five percent (125%) of the sum of such contributions, interest and penalty, for which lien is claimed, conditioned upon the prompt payment of such contribution, together with interest and penalty thereon, by such employing unit to the cabinet in accordance with the provisions set forth in such bond. (3) (a) The secretary may issue a certificate of release of lien upon the furnishing of a corporate surety bond satisfactory to the secretary by such employing unit in the amount of one hundred twenty-five percent (125%) of the sum of such contributions, interest and penalty, for which lien is claimed, conditioned upon the prompt payment of such contribution, together with interest and penalty thereon, by such employing unit to the cabinet in accordance with the provisions set forth in such bond.
    2. The secretary may issue a certificate of partial release of any part of the property subject to the lien if he finds that the fair market value of that part of such property remaining subject to the lien is at least equal to the amount of all other liens upon such property plus double the amount of the liability for contributions, interest and penalties thereon remaining unsatisfied.
    3. The secretary may issue a certificate of partial release of any part of the property or individual piece of property subject to the lien if he finds that the interest of the Commonwealth in the property to be so released has no value.

History. 4748g-8: amend. Acts 1942, ch. 19, §§ 6, 15; 1948, ch. 216, § 9; 1950, ch. 206, § 1; 1952, ch. 154, § 11; 1960, ch. 164, § 2; 1962, ch. 210, § 47; 1974, ch. 74, Art. VI, § 107(21), (23); 1978, ch. 384, § 485, effective June 17, 1978; 1988, ch. 106, § 6, effective July 15, 1988; 2006, ch. 255, § 26, effective January 1, 2007.

Legislative Research Commission Note.

(1988). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 .

NOTES TO DECISIONS

  1. Strict Construction.
  2. Lien.
  3. — Notice.
  4. — Priorities.
  5. Unpaid Contributions.
1. Strict Construction.

As the Unemployment Compensation Act pertains to taxation, it is to be strictly construed. Louisville Title Mortg. Co. v. Commonwealth, 299 Ky. 224 , 184 S.W.2d 963, 1944 Ky. LEXIS 1041 ( Ky. 1944 ).

2. Lien.

This section makes the contribution of the employer to the Commission a tax lien on a par with other tax liens. International Harvester Co. v. Dyer's Adm'r, 297 Ky. 55 , 178 S.W.2d 966, 1944 Ky. LEXIS 669 ( Ky. 1944 ).

The provisions of KRS 134.420 , relating to liens for taxes generally, do not apply to unemployment compensation contributions. Louisville Title Mortg. Co. v. Commonwealth, 299 Ky. 224 , 184 S.W.2d 963, 1944 Ky. LEXIS 1041 ( Ky. 1944 ).

3. — Notice.

Notice of lien is required by this section because the records of the Unemployment Compensation (now Insurance) Commission are not open to public inspection. Louisville Title Mortg. Co. v. Commonwealth, 299 Ky. 224 , 184 S.W.2d 963, 1944 Ky. LEXIS 1041 ( Ky. 1944 ).

4. — Priorities.

A landlord’s claim against bankrupt for unpaid rent, which constituted a lien, was inferior to claim of Unemployment Compensation (now Insurance) Commission for contributions due. In re Auto Electric Repair & Parts Co., 41 F. Supp. 3, 1941 U.S. Dist. LEXIS 2592 (D. Ky. 1941 ).

The Commissioner’s (now Secretary’s) lien on the employer’s property to secure payments of contributions to the Unemployment Insurance Fund is inferior to bona fide liens existing before the notice of the lien for security contribution or tax is given. American Surety Co. v. Louisville Municipal Housing Com., 63 F. Supp. 486, 1945 U.S. Dist. LEXIS 1727 (W.D. Ky. 1945 ), aff'd, 160 F.2d 977, 1947 U.S. App. LEXIS 3679 (6th Cir. Ky. 1947 ).

Lien on property of employer to secure unemployment compensation contributions, under this section, is superior both to the lien on the employer’s assets to secure workmen’s compensation awards and to the lien securing laborers’ wages. Commonwealth ex rel. Unemployment Compensation Com. v. Durham, 290 Ky. 408 , 161 S.W.2d 610, 1942 Ky. LEXIS 411 ( Ky. 1942 ).

Vendor’s lien of person who sold property to subject employer was superior to lien of Unemployment Compensation Commission for contributions, where sale was made before notice of lien was filed. Louisville Title Mortg. Co. v. Commonwealth, 299 Ky. 224 , 184 S.W.2d 963, 1944 Ky. LEXIS 1041 ( Ky. 1944 ).

This section is designed to give the Commonwealth’s lien priority only in those cases where the subject employer encumbers his property after the Commonwealth’s lien has accrued. Commonwealth ex rel. Division of Unemployment Ins. v. Miller's Creek Mineral Development Co., 280 S.W.2d 534, 1955 Ky. LEXIS 181 ( Ky. 1955 ).

This section was not designed to allow the Commonwealth priority over the obligees of the subject employer who have recorded their liens before the Commonwealth’s lien accrued. Commonwealth ex rel. Division of Unemployment Ins. v. Miller's Creek Mineral Development Co., 280 S.W.2d 534, 1955 Ky. LEXIS 181 ( Ky. 1955 ).

5. Unpaid Contributions.

A claim of the Kentucky Unemployment Compensation (now Insurance) Commission against an employer’s bankrupt estate, for unpaid contributions and penalty for nonpayment thereof, became a lien by virtue of this section and should have been allowed against estate. Kentucky ex rel. Unemployment Compensation Com. v. Farmers Bank & Trust Co., 139 F.2d 266, 1943 U.S. App. LEXIS 2259 (6th Cir. Ky. 1943 ), disapproved, Simonson v. Granquist, 369 U.S. 38, 82 S. Ct. 537, 7 L. Ed. 2d 557, 1962 U.S. LEXIS 2225 (U.S. 1962).

Cited:

Oppenheimer v. Commonwealth, 305 Ky. 147 , 202 S.W.2d 373, 1947 Ky. LEXIS 707 ( Ky. 1947 ).

Opinions of Attorney General.

Where a state check, payable to a corporation and representing the release and refund of a cash bond filed with the department of reclamation is held by the state treasurer, it should be credited pursuant to the statutory mandate of KRS 44.030 toward the obligation of the corporation under a claim in excess of the amount of the check filed pursuant to this section by the Department (now Cabinet) for Human Resources for nonpayment of unemployment contributions, so that the corporation has no funds in the hands of the treasurer to be attached by a subsequent levy against the corporation by the United States Internal Revenue Service, and the law to determine priority of competing liens does not apply. OAG 74-666 .

The bureau for social insurance is not required to give notice to a general contractor against which it proposes to file a lien under KRS 341.260 (2) for unpaid contributions of a subcontractor since the notice of lien provisions of this section and KRS 341.315 address persons other than the contractor who, for purposes of KRS 341.260 , is the subject employer. OAG 83-69 .

If the general contractor has already released its subcontractors, as is common upon a reasonable period of time after completion of the contract, the bureau may impose a lien upon it without giving notice prior to the release; the general contractor has a duty to see that his subcontractor has paid such taxes before the general contractor releases moneys owed to his subcontractor. OAG 83-69 .

The notice provision set out in KRS 376.010(3) is only applicable to liens under KRS 341.315 , not those under this section. OAG 83-69 .

This section and 341.315 are applicable to persons dealing with general and subcontractors and the lien under this section is not the same lien cited in KRS 341.315 . OAG 83-69 .

The purpose of the notice provision of subsection (2) (now subsection (1)) of this section is to give actual or constructive notice to other persons dealing with the contractor or subcontractor that any property they purchase from such contractor or subcontractor is subject to such lien and such notice will be important for determining priority of competing liens; likewise, KRS 341.315 creates a form of mechanics lien on such property and the purpose of the notice provision is to notify third parties dealing with such subject employer. OAG 83-69 .

341.315. Lien on building for contributions due by reason of labor performed — Procedure.

A lien of the same nature and upon the same property and having the same force, effect and priorities as that created by KRS 376.010 and 376.140 in favor of persons performing labor is hereby created in favor of the cabinet to secure the payment of contributions and interest accruing by reason of the labor performed by the persons. Notice of the lien shall be filed and the lien may be enforced in the same manner and within the same time after the last contributions became due as is provided for filing and enforcing the liens created in KRS 376.010 and 376.140 .

History. Enact. Acts 1958, ch. 4, § 15; 1972, ch. 21, § 24; 1974, ch. 74, Art. VI, § 107(23); 1996, ch. 266, § 10, effective July 15, 1996.

Opinions of Attorney General.

If the general contractor has already released its subcontractors, as is common upon a reasonable period of time after completion of the contract, the bureau may impose a lien upon it without giving notice prior to the release; the general contractor has a duty to see that his subcontractor has paid such taxes before the general contractor relases moneys owed to his subcontractor. OAG 83-69 .

The bureau (now department) for social insurance is not required to give notice to a general contractor against which it proposes to file a lien under KRS 341.260 (2) for unpaid contributions of a subcontractor since the notice of lien provisions of KRS 341.310 and this section address persons other than the contractor who, for purposes of KRS 341.260 , is the subject employer. OAG 83-69 .

KRS 341.310 and this section are applicable to persons dealing with general and subcontractors and the lien under KRS 341.310 is not the same lien cited in this section. OAG 83-69 .

The notice provision set out in KRS 376.010(3) is only applicable to liens under this section, not those under KRS 341.310 . OAG 83-69 .

The purpose of the notice provision of KRS 341.310(2) (now KRS 341.310(1)) is to give actual or constructive notice to other persons dealing with the contractor or subcontractor that any property they purchase from such contractor or subcontractor is subject to such lien and such notice will be important for determining priority of competing liens; likewise, this section creates a form of mechanics lien on such property and the purpose of the notice provision is to notify third parties dealing with such subject employer. OAG 83-69 .

341.317. Bond of public works contractor.

  1. Before any contract, exceeding two thousand dollars ($2,000) in amount, is awarded to any person for the construction, alteration, or repair of any public building or public work of the Commonwealth of Kentucky, or any subdivision, county or municipality thereof, such person shall furnish to the contracting agency, county or municipality a payment bond with satisfactory surety, which shall become binding upon the award of the contract to such person, to assure the payment of all contributions under this chapter incurred by such person incident to his performance of such contract.
  2. Nothing in this section shall be construed to limit the authority of any contracting agency, county or municipality to require such other bonds or security as might be elsewhere authorized or deemed desirable.

History. Enact. Acts 1958, ch. 4, § 17.

341.320. Person selling property subject to lien — Person purchasing from subject employer — Duties. [Repealed.]

Compiler’s Notes.

This section (4748g-8) was repealed by Acts 1942, ch. 19, §§ 6, 15.

341.330. Adjustment or refund to employing unit.

  1. Not later than five (5) years after the date on which any contributions, interest, or penalties were paid, an employing unit which has paid such contributions, interest, or penalties may make application for an adjustment in connection with subsequent contribution payments, or for a refund thereof; except that no such application may be made in connection with any payment made as a result of any administrative determination affecting that employing unit’s liability, contribution rate, or amount of contributions where no application for review by the commission was made as provided in KRS 341.430(2), or where such review was made but no such adjustment was determined by the commission to be due.
  2. If such contributions, interest, or penalties or any portion thereof were erroneously collected, the employing unit shall be allowed to make an adjustment thereof, without interest, in connection with subsequent contribution payments by it; or, if the amount erroneously collected exceeds fifty dollars ($50), the amount may be refunded, without interest, upon written request by the employing unit; or, if an adjustment cannot be made because the employing unit will have no subsequent liability, the amount shall be refunded, without interest, from the funds into which such contributions, interest, or penalties were paid.
  3. For like cause and within the same period, adjustment or refund may be so made by the secretary on his own initiative.

History. 4748g-8: amend. Acts 1948, ch. 216, § 10; 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, § 107(21); 1988, ch. 106, § 7, effective July 15, 1988; 1998, ch. 167, § 2, effective July 15, 1998.

NOTES TO DECISIONS

1. Voluntary Contributions.

Voluntary contributions, erroneously believed to be sufficient to bring an employer’s reserve account to a status so as to reduce his contribution rate for the succeeding year, could be recovered by the employer under the authority of this section, in spite of a Commission rule to the contrary. Barnes v. Levy Bros, Inc., 295 Ky. 794 , 175 S.W.2d 495, 1943 Ky. LEXIS 338 ( Ky. 1943 ). See Barnes v. Stearns Coal & Lumber Co., 295 Ky. 812 , 175 S.W.2d 498, 1943 Ky. LEXIS 339 ( Ky. 1943 ).

Cited:

Unemployment Compensation Co. . v. Consolidation Coal Co., 287 Ky. 330 , 152 S.W.2d 971, 1941 Ky. LEXIS 538 ( Ky. 1941 ).

341.340. Refund to certain workers. [Repealed.]

Compiler’s Notes.

This section (4748g-8) was repealed by Acts 1950, ch. 206, § 1.

Benefits

341.350. Conditions of qualification for benefits.

An unemployed worker shall, except as provided in KRS 341.360 and 341.370 , be eligible for benefits with respect to any week of unemployment only if:

  1. He or she has made a claim for benefits;
  2. For an initial claim made on or after January 1, 2012, he or she has served a waiting period of one (1) week, during which he or she has not received benefits. The waiting week period shall be the first compensable week of an initial claim for benefits for which he or she is eligible and qualified to receive benefits under this chapter. A waiting week period shall be required for each benefit year, whether or not consecutive. No more than one (1) waiting week period shall be required in any benefit year. The waiting week shall become compensable once the remaining balance on the claim is equal to or less than the compensable amount for the waiting week;
    1. He or she has registered for work with respect to such week in accordance with administrative regulations promulgated by the secretary; and (3) (a) He or she has registered for work with respect to such week in accordance with administrative regulations promulgated by the secretary; and
    2. He or she participates in reemployment services, such as job search assistance services, if pursuant to a profiling system established by the secretary, he or she has been determined to be likely to exhaust regular benefits unless:
      1. The claimant has completed the services to which he or she is referred; or
      2. There is justifiable cause for the claimant’s failure to participate in the services. For the purpose of this section, “justifiable cause” shall be interpreted to mean what a reasonable person would do in like circumstances;
  3. He or she is physically and mentally able to work;
  4. He or she is available for suitable work, and making such reasonable effort to obtain work as might be expected of a prudent person under like circumstances;
  5. His or her base-period wages in that calendar quarter of his or her base period in which such wages were highest are equal to at least one thousand five hundred dollars ($1,500), and his or her total base-period wages are not less than one and one-half (1-1/2) times the base-period wages paid to him or her in such quarter and he or she was paid base-period wages in the last six (6) months of his or her base period equal to at least eight (8) times his or her weekly benefit rate with a minimum of one thousand five hundred dollars ($1,500) earned outside the high quarter. Beginning on January 1, 2020, and continuing on January 1 in even-numbered years thereafter, the secretary shall adjust the minimum base-period wages at a rate that is directly proportional to the average percentage change in the Consumer Price Index for All Urban Consumers (CPI-U) for the two (2) previous calendar years;
  6. An otherwise eligible worker shall not be denied benefits under subsection (5) of this section or because of his or her failure to actively seek work, nor disqualified under paragraph (a) of subsection (1) of KRS 341.370 with respect to any week he or she is in training with the approval of the secretary.
  7. Notwithstanding any other provisions of this chapter, no otherwise eligible worker shall be denied benefits for any week because he or she is in training approved under 19 U.S.C. sec. 2296 (Section 236(a)(1) of the Trade Act of 1974), nor shall such worker be denied benefits by reason of leaving work to enter such training provided such work is not suitable employment, or because of the application to any such week in training of provisions in this law (or any applicable federal unemployment compensation law) relating to availability for work, active search for work, or refusal to accept work. For purpose of this subsection, the term “suitable employment” shall mean employment of a substantially equal or higher skill level than the worker’s past adversely affected employment as defined in 19 U.S.C. sec. 2319 (Trade Act of 1974), and wages for such work are not less than eighty percent (80%) of the workers’ average weekly wage as determined for purposes of the Trade Act of 1974.
  8. The foregoing eligibility requirements and the conditions of benefit disqualifications imposed by KRS 341.370 shall be strictly construed. Nothing in this section, excepting subsection (6) of this section, nor in KRS 341.360 or 341.370 shall affect the establishment of a “benefit year.”

HISTORY: 4748g-9: amend. Acts 1942, ch. 20, §§ 4, 10; 1948, ch. 216, § 11; 1950, ch. 206, § 1; 1956, (4th Ex. Sess.), ch. 3; 1958, ch. 4, § 7; 1972, ch. 21, § 25; 1972, ch. 85, § 1; 1974, ch. 74, Art. VI, § 107(31); 1978, ch. 389, § 21, effective July 1, 1978; 1982, ch. 67, § 6, effective September 26, 1982; 1982, ch. 261, § 4, effective July 1, 1982; 1994, ch. 136, § 2, effective July 15, 1994; 1996, ch. 266, § 11, effective July 15, 1996; 2010 (1st Ex. Sess.), ch. 5, § 8, effective August 28, 2010; 2018 ch. 134, § 3, effective July 14, 2018.

NOTES TO DECISIONS

  1. Construction.
  2. Ability to Work.
  3. Availability for Suitable Work.
  4. — Voluntary Unemployment.
  5. — Good Cause for Rejecting Work.
  6. Shutdown by Employer.
  7. Maternity Leave.
  8. Self-employment.
  9. Burden of Proof.
  10. Failure to Pass Test.
  11. Suspension for Misconduct.
  12. Reasonable Efforts to Obtain Work.
1. Construction.

The eligibility requirements of this section shall be strictly construed. Broadway & Fourth Ave. Realty Co. v. Allen, 365 S.W.2d 302, 1962 Ky. LEXIS 285 ( Ky. 1962 ).

This section is to be strictly construed. Brown Hotel Co. v. Napier, 365 S.W.2d 311, 1962 Ky. LEXIS 289 ( Ky. 1962 ).

2. Ability to Work.

So long as an ordinary laborer is able to perform some type of work, he should be deemed able to work within the meaning of this section. Kentucky Unemployment Ins. Co. v. Henry Fischer Packing Co., 259 S.W.2d 436, 1953 Ky. LEXIS 944 ( Ky. 1953 ).

3. Availability for Suitable Work.

To be available for suitable work an employee must be genuinely attached to the labor market, he must be willing and ready to work, he must have the capacity to perform some type of work although he may be unable to do his customary work, and work within his abilities must be reasonably procurable where he lives. Kentucky Unemployment Ins. Co. v. Henry Fischer Packing Co., 259 S.W.2d 436, 1953 Ky. LEXIS 944 ( Ky. 1953 ).

Where the claimant refused re-employment in the factory where he had worked on the grounds that he could not perform the work, although he had not tried it, he was not making a reasonable effort to find work and was ineligible for benefits. Kentucky Unemployment Ins. Com. v. Day, 451 S.W.2d 656, 1970 Ky. LEXIS 415 ( Ky. 1970 ).

Employees who did not sign the job lists of positions available while their employer’s business was shut down for a vacation period because the lists were full when they saw them had rejected “suitable work” where the bargaining agreement clearly spelled out that notices would be posted and that first priority would be given to those employees ineligible for vacation pay and there was some evidence that employer later increased the number of available positions but that the employees failed to inquire as to that possibility. Murray Operation of Tappan Co. v. Kentucky Unemployment Ins. Com., 583 S.W.2d 100, 1979 Ky. App. LEXIS 426 (Ky. Ct. App. 1979) (decision prior to 1982 amendment of KRS 341.370 ).

Where bargaining agreement placed no duty on employees to apply for positions available during vacation shutdown, but agreement directed the posting of job list, set out wages to be paid for such work and impliedly recognized that only a limited number of positions would be available, such work could not be considered “unsuitable” merely because employees may have been paid a lower hourly rate than their regular jobs and employees who failed to sign up for such jobs were not entitled to benefits. Murray Operation of Tappan Co. v. Kentucky Unemployment Ins. Com., 583 S.W.2d 100, 1979 Ky. App. LEXIS 426 (Ky. Ct. App. 1979) (decision prior to 1982 amendment of KRS 341.370 ).

4. — Voluntary Unemployment.

Where plant was shut down for one week pursuant to collective bargaining agreement which required shutdowns as vacation periods and which listed eligibility requirements for vacation, thereby recognizing that some employees would not be compensated during shutdown, employees who were not entitled to vacation pay during a shutdown were voluntarily unemployed and were not entitled to benefits. Murray Operation of Tappan Co. v. Kentucky Unemployment Ins. Com., 583 S.W.2d 100, 1979 Ky. App. LEXIS 426 (Ky. Ct. App. 1979) (decision prior to 1982 amendment of KRS 341.370 ).

5. — Good Cause for Rejecting Work.

Where employees stated that they declined to sign the job list during a vacation shutdown either because they didn’t like the type of work offered or because they felt they needed a vacation, neither reason constituted “good cause” for rejecting work. Murray Operation of Tappan Co. v. Kentucky Unemployment Ins. Com., 583 S.W.2d 100, 1979 Ky. App. LEXIS 426 (Ky. Ct. App. 1979) (decision prior to 1982 amendment of KRS 341.370 ).

6. Shutdown by Employer.

Where unemployment results from the discontinuance of operations by the employer, the reason for the discontinuance has no bearing at all on the right of the worker to draw benefits, even when the discontinuance is caused by a public law. Churchill Downs, Inc. v. Kentucky Unemployment Ins. Com., 454 S.W.2d 347, 1970 Ky. LEXIS 274 ( Ky. 1970 ).

7. Maternity Leave.

Administrative rule as to availability for work during maternity leave has no application where maternity leave status was determined by contract between employer and employee. Southern Bell Tel. & Tel. Co. v. Kentucky Unemployment Ins. Com., 437 S.W.2d 775, 1969 Ky. LEXIS 461 ( Ky. 1969 ).

8. Self-employment.

Under subsection (2) of KRS 341.370 which prior to its amendment in 1980 provided that a worker was disqualified from receiving benefits when he voluntarily left work to become self-employed, applicant who had substantial farming and livestock brokerage business and was also banker, was self-employed where he was occupied full time by the farming and brokerage business after leaving bank, which gave him choice of giving up either banking or farming; thus, he was not entitled to unemployment benefits since he was not unemployed under this section. Coomer v. New Farmers Nat'l Bank, 611 S.W.2d 805, 1981 Ky. App. LEXIS 223 (Ky. Ct. App. 1981).

9. Burden of Proof.

The claimant seeking to establish eligibility for benefits under this section must bear the burden of proof in order to recover on the claim. Brown Hotel Co. v. Edwards, 365 S.W.2d 299, 1962 Ky. LEXIS 284 ( Ky. 1962 ).

10. Failure to Pass Test.

Failure to score a passing mark on the state test designed specifically to measure competence to perform as an insurance agent is persuasive of one’s unskillfulness or incompetence in that line of work, thereby entitling the employer to terminate the employment relationship without liability for unemployment benefits. Murphy v. Kentucky Unemployment Ins. Com., 694 S.W.2d 709, 1985 Ky. App. LEXIS 723 (Ky. Ct. App. 1985).

11. Suspension for Misconduct.

Suspension for misconduct does not result in disqualification for unemployment compensation. A suspension does not commonly mean a separation from employment. Rather, during a suspension, employment with the employer continues. Thus, the Unemployment Insurance Commission erred in denying benefits to employees who had been suspended by their employer. Kentucky Unemployment Ins. Com. v. Jones, 809 S.W.2d 715, 1991 Ky. App. LEXIS 43 (Ky. Ct. App. 1991).

12. Reasonable Efforts to Obtain Work.

Kentucky Unemployment Insurance Commission applied an incorrect standard that required an unemployment benefits claimant to be actively seeking work to obtain benefits; the correct standard under KRS 341.350(3)-(4) required the claimant to have made reasonable efforts to obtain suitable work. Wilson v. Ky. Unemployment Ins. Comm'n, 270 S.W.3d 915, 2008 Ky. App. LEXIS 366 (Ky. Ct. App. 2008).

Cited:

Shelley v. National Carbon Co., 285 Ky. 502 , 148 S.W.2d 686, 1941 Ky. LEXIS 420 ( Ky. 1941 ); Elkhorn & Jellico Coal Co. v. Kentucky Unemployment Compensation Com., 310 Ky. 674 , 221 S.W.2d 640, 1949 Ky. LEXIS 994 ( Ky. 1949 ); Brown Hotel Co. v. Elmore, 365 S.W.2d 309, 1962 Ky. LEXIS 288 ( Ky. 1962 ); Tackett v. Kentucky Unemployment Ins. Com., 630 S.W.2d 76, 1982 Ky. App. LEXIS 204 (Ky. Ct. App. 1982); Brock v. Kentucky Unemployment Ins. Com., 693 S.W.2d 69, 1985 Ky. App. LEXIS 619 (Ky. Ct. App. 1985); Gatliff Coal Co. v. Anderson, 814 S.W.2d 564, 1991 Ky. LEXIS 115 ( Ky. 1991 ).

Research References and Practice Aids

Cross-References.

Person covered by workers’ compensation, KRS 342.640 .

Persons eligible for public assistance, KRS 205.200 .

ALR

Eligibility as affected by claimant’s refusal to work at particular times or on particular shifts. 35 A.L.R.3d 1129.

Eligibility of employee laid off according to employer’s mandatory retirement plan. 50 A.L.R.3d 880.

Termination of employment because of pregnancy as affecting right to unemployment compensation. 51 A.L.R.3d 254.

Right to unemployment compensation as affected by receipt of pension. 56 A.L.R.3d 520.

Right to unemployment compensation as affected by receipt of Social Security benefits. 56 A.L.R.3d 552.

Eligibility of participants in sympathy strike or slow down. 61 A.L.R.3d 746.

Harassment or other mistreatment by employer or supervisor as “good cause” justifying abandonment of employment. 76 A.L.R.3d 1089.

Eligibility for unemployment compensation of employee who retires voluntarily. 88 A.L.R.3d 274.

Eligibility as affected by claimant’s insistence upon conditions not common or customary to particular employment. 88 A.L.R.3d 1353.

Eligibility as affected by claimant’s refusal to accept employment at compensation less than that of previous job. 94 A.L.R.3d 63.

Eligibility as affected by claimant’s refusal to work at reduced compensation. 95 A.L.R.3d 449.

Eligibility as affected by mental, nervous, or psychological disorder. 1 A.L.R.4th 802.

Right to unemployment compensation as affected by claimant’s receipt of holiday pay. 3 A.L.R.4th 557.

Leaving or refusing employment for religious reasons as barring unemployment compensation. 12 A.L.R.4th 611.

Leaving or refusing employment because of allergic reaction as affecting right to unemployment compensation. 12 A.L.R.4th 629.

Unemployment compensation as affected by vacation or payment in lieu thereof. 14 A.L.R.4th 1175.

Right to unemployment compensation as affected by employee’s refusal to work in areas where smoking is permitted. 14 A.L.R.4th 1234.

Right to unemployment compensation of one who quit job because not given enough work to keep busy. 15 A.L.R.4th 256.

Unemployment compensation: Eligibility as affected by claimant’s refusal to work at particular times or on particular shifts for domestic or family reasons. 2 A.L.R.5th 475.

341.355. Additional qualification for benefit eligibility.

An otherwise eligible worker under this chapter shall be ineligible for benefits for any week in a benefit year unless, subsequent to the beginning of the worker’s immediately preceding benefit year, he or she returned to work and earned wages in covered employment equal to at least five (5) times his or her weekly benefit rate established for the previous benefit year.

History. Enact. Acts 2011, ch. 30, § 1, effective June 8, 2011.

341.360. Conditions of disqualification for benefits.

  1. No worker may be paid benefits for any week of unemployment:
    1. With respect to which a strike or other bona fide labor dispute which caused him to leave or lose his employment is in active progress in the establishment in which he is or was employed, except that benefits may be paid unless the employer notifies the Office of Unemployment Insurance, Department of Workforce Investment, in writing within seven (7) days after the beginning of such alleged strike or labor dispute of the alleged existence of such strike or labor dispute. For the purpose of this subsection, a lockout shall not be deemed to be a strike or a bona fide labor dispute and no worker shall be denied benefits by reason of a lockout;
    2. For which he has received or is seeking unemployment compensation under an unemployment compensation law of another state or of the United States, except as otherwise provided by an arrangement between this state and such other state or the United States; but if the appropriate agency of such state or of the United States finally determines that he is not entitled to such unemployment compensation, this subsection shall not apply;
      1. Which, when based on service in an instructional, research, or principal administrative capacity in an institution of higher education as defined in KRS 341.067(2) or in an educational institution as defined in KRS 341.067(4), begins during the period between two (2) successive academic years, or during a similar period between two (2) regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual’s contract, if the worker performs such services in the first of such academic years or terms and if there is a contract or a reasonable assurance that the worker will perform such services in any such capacity for any institution or institutions of higher education or an educational institution in the second of such academic years or such terms; or (c) 1. Which, when based on service in an instructional, research, or principal administrative capacity in an institution of higher education as defined in KRS 341.067(2) or in an educational institution as defined in KRS 341.067(4), begins during the period between two (2) successive academic years, or during a similar period between two (2) regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual’s contract, if the worker performs such services in the first of such academic years or terms and if there is a contract or a reasonable assurance that the worker will perform such services in any such capacity for any institution or institutions of higher education or an educational institution in the second of such academic years or such terms; or
      2. Which, when based on service other than as defined in subparagraph 1. of this paragraph, in an institution of higher education or an educational institution, as defined in KRS 341.067(2) or (4), begins during the period between two (2) successive academic years or terms, if the worker performs such services in the first of such academic years or terms and there is a reasonable assurance that the worker will perform such services in the second of such academic years or terms; except that if benefits are denied to any worker under this paragraph and such worker was not offered an opportunity to perform such services for such institution of higher education or such educational institution for the second of such academic years or terms, such worker shall be entitled to a retroactive payment of benefits for each week for which the worker filed a timely claim for benefits and for which benefits were denied solely by reason of this paragraph; or
      3. Which, when based on service in any capacity defined in subparagraphs 1. and 2. of this paragraph, begins during an established and customary vacation period or holiday recess if the worker performs any such services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such worker will perform any such services in the period immediately following such vacation period or holiday recess; or
      4. Based on service in any capacity defined in subparagraph 1. or 2. of this paragraph when such service is performed by the worker in an institution of higher education or an educational institution, as defined in KRS 341.067(2) or (4), while the worker is in the employ of an educational service agency, and such unemployment begins during the periods and pursuant to the conditions specified in subparagraphs 1., 2., and 3. of this paragraph. For purposes of this paragraph, the term “educational service agency” means a governmental agency or governmental entity which is established and operated exclusively for the purpose of providing such services to one (1) or more institutions of higher education or educational institutions;
    3. With respect to which the worker is suspended from work for misconduct, as defined in KRS 341.370(6), connected with the work.
  2. Benefits shall not be paid to any individual on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two (2) successive sport seasons or similar periods and there is a reasonable assurance that such individual will perform such services in the later of such seasons or similar periods.
    1. Benefits shall not be paid on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or was residing in the United States under color of law at the time such services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of Section 203(a)(7) or Section 212(d)(5) of the Immigration and Nationality Act. (3) (a) Benefits shall not be paid on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or was residing in the United States under color of law at the time such services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of Section 203(a)(7) or Section 212(d)(5) of the Immigration and Nationality Act.
    2. Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits.
    3. In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of his alien status shall be made except upon a preponderance of the evidence.

Notwithstanding any other provision of this paragraph, any benefits paid to a worker based on service other than as defined in subparagraph 1. of this paragraph performed in an institution of higher education as defined in KRS 341.067(2) shall be deemed to have been paid as a result of Office of Unemployment Insurance, Department of Workforce Investment, error and not recoverable by the cabinet or such institution if such payment is improper by virtue of the retroactive application to October 30, 1983, of subparagraph 2. of this paragraph; or

HISTORY: 4748g-9: amend. Acts 1942, ch. 20, §§ 4, 10; 1950, ch. 206, § 1; 1972, ch. 21, § 26; 1974, ch. 74, Art. VI, § 107(23); 1978, ch. 389, § 22, effective July 1, 1978; 1980, ch. 385, § 5, effective July 1, 1980; 1984, ch. 1, § 1, effective July 13, 1984; 1992, ch. 133, § 2, effective July 14, 1992; 2006, ch. 211, § 147, effective July 12, 2006; 2018 ch. 134, § 4, effective July 14, 2018; 2019 ch. 146, § 62, effective June 27, 2019.

Compiler’s Notes.

Sections 203 and 212 of the Immigration and Nationality Act, referred to in subsection (3)(a), are compiled as 8 USCS §§ 1153 and 1182, respectively.

Legislative Research Commission Note.

(6/26/2007). The internal numbering of subdivisions of this section has been altered by the Reviser of Statutes under the authority of KRS 7.136 .

NOTES TO DECISIONS

  1. Purpose.
  2. Construction.
  3. Labor Dispute.
  4. — Lockout.
  5. — Strike.
  6. — — Equipment Breakdown After Strike.
  7. Establishment.
  8. — Separate.
  9. Appeals.
1. Purpose.

The fundamental purpose of this section was to prohibit benefit payments to those employees who had left their employment because of a strike or bona fide labor dispute, that the employer’s notice required by this section was evidentiary in character, and the Commission was not required to pay benefits in the absence of such notice if other evidence clearly established the existence of the disqualifying fact. Elkhorn & Jellico Coal Co. v. Kentucky Unemployment Compensation Com., 310 Ky. 674 , 221 S.W.2d 640, 1949 Ky. LEXIS 994 ( Ky. 1949 ).

The purpose of this section is to disqualify employees who voluntarily leave work in order to improve their bargaining position in a labor dispute. Kosmos Cement Co. v. Haney, 698 S.W.2d 819, 1985 Ky. LEXIS 274 ( Ky. 1985 ).

2. Construction.

The use of the present tense verb “is” in subsection (1) of this section, instead of the past tense “was,” means that the section has no application to work lost to other causes in a week where coincidentally there “was” a labor dispute that had since been settled. Vance v. Kentucky Unemployment Ins. Com., 814 S.W.2d 284, 1991 Ky. App. LEXIS 84 (Ky. Ct. App. 1991).

3. Labor Dispute.

Where miner became unemployed on expiration of contract between union and coal operators and remained unemployed until execution of new contract, refusing to continue work under old contract until agreement could be reached, he lost his employment and, in absence of an intervening lockout, remained unemployed because of a bona fide labor dispute and was not entitled to unemployment compensation. Barnes v. Hall, 285 Ky. 160 , 146 S.W.2d 929, 1940 Ky. LEXIS 600 ( Ky. 1940 ), cert. denied, 314 U.S. 628, 62 S. Ct. 59, 86 L. Ed. 505, 1941 U.S. LEXIS 387 (U.S. 1941).

Where employees were laid off during dispute between union and employer over staggered and regular work shifts, the employees in question were not eligible for unemployment compensation. Ward v. Barnes, 266 S.W.2d 338, 1954 Ky. LEXIS 813 ( Ky. 1954 ).

This section does not require that the unemployment be “due to” a continuation of the dispute but simply calls for two concurring circumstances: (a) that the labor dispute caused the loss of employment in the first place; and (b) that the same dispute is still in active progress. Johnson v. Kentucky Unemployment Ins. Com., 367 S.W.2d 253, 1963 Ky. LEXIS 16 ( Ky. 1963 ).

When all that kept the dispute from taking the form of a strike was the existence of a temporary injunction, it was still a “labor dispute” and was “in active progress.” Johnson v. Kentucky Unemployment Ins. Com., 367 S.W.2d 253, 1963 Ky. LEXIS 16 ( Ky. 1963 ).

4. — Lockout.

A lockout is the independent action of the employer in refusing to furnish work for the coercive purpose of compelling the employee to accept terms or make concessions favorable to the employer. Detroit Harvester Co. v. Kentucky Unemployment Ins. Com., 343 S.W.2d 365, 1961 Ky. LEXIS 413 ( Ky. 1961 ). See Kentucky Unemployment Ins. Com. v. South-East Coal Co., 389 S.W.2d 929, 1965 Ky. LEXIS 403 ( Ky. 1965 ).

The legislature has chosen to limit the strength and effectiveness of the lockout weapon by permitting the locked out employee to receive unemployment benefits. Kentucky Unemployment Ins. Com. v. Louisville Builders Supply Co., 351 S.W.2d 157, 1961 Ky. LEXIS 142 ( Ky. 1961 ).

If the employer, on termination of a previously existing contract, announces that he will not continue to furnish employment unless the employees agree to a new contract (with a fixed period of duration), he will be deemed to have imposed a lockout, regardless of whether the proposed new contract may be considered more favorable to the employer than was the former contract. D. J. B. Collieries Co. v. Kentucky Unemployment Ins. Com., 385 S.W.2d 772, 1964 Ky. LEXIS 162 ( Ky. 1964 ).

A lockout is a cessation of the furnishing of work to employees in an effort by the employer to obtain more desirable terms. Kentucky Unemployment Ins. Com. v. South-East Coal Co., 389 S.W.2d 929, 1965 Ky. LEXIS 403 ( Ky. 1965 ).

5. — Strike.

Where members of international labor union went on strike at Ford plant at Dearborn, Michigan, thereby causing the Ford plant at Louisville to close due to lack of parts to assemble, employees of Louisville plant were not out on strike and therefore unemployment compensation payments were properly charged to Ford Company’s reserve account rather than being charged to commission’s pooled account. Ford Motor Co. v. Kentucky Unemployment Compensation Com., 243 S.W.2d 657, 1951 Ky. LEXIS 1148 ( Ky. 1951 ).

The strike activities of the employees cannot be the test of qualification for unemployment benefits. Snook v. International Harvester Co., 276 S.W.2d 658, 1955 Ky. LEXIS 437 ( Ky. 1955 ).

A strike is a cessation of work by employees in an effort to obtain more desirable employment terms. Kentucky Unemployment Ins. Com. v. South-East Coal Co., 389 S.W.2d 929, 1965 Ky. LEXIS 403 ( Ky. 1965 ).

Claimants who have been laid off for lack of work prior to the beginning of a strike and who are then recalled to work which but for the strike would not have been available are not required to return to work or lose their unemployment benefits. Kosmos Cement Co. v. Haney, 698 S.W.2d 819, 1985 Ky. LEXIS 274 ( Ky. 1985 ).

6. — — Equipment Breakdown After Strike.

This section is designed to protect workers who, through no fault of their own, find themselves without work, therefore union employees who missed a portion of one week’s work due to a strike which was resolved and another portion of the same week due to equipment breakdown, are entitled to unemployment insurance compensation for the period of the equipment breakdown, even though subdivision (1) of this section prevents recovery for the period of the strike. Vance v. Kentucky Unemployment Ins. Com., 814 S.W.2d 284, 1991 Ky. App. LEXIS 84 (Ky. Ct. App. 1991).

7. Establishment.

“Establishment,” as used in this section, refers to single unit of employment and does not embrace entire industry, consisting of multiple units. Ford Motor Co. v. Kentucky Unemployment Compensation Com., 243 S.W.2d 657, 1951 Ky. LEXIS 1148 ( Ky. 1951 ).

8. — Separate.

The place and nature of a particular employment are more important than the singleness of management or product in determining whether separate establishments exist. Snook v. International Harvester Co., 276 S.W.2d 658, 1955 Ky. LEXIS 437 ( Ky. 1955 ).

No arbitrary linear distance can control the question of proximity as to when two operations in separate places are considered to be one “establishment.” United States Steel Corp. v. Brown, 441 S.W.2d 405, 1969 Ky. LEXIS 313 ( Ky. 1969 ).

The distance between Lynch and Corbin is so great as to negate the thought that Lynch and Corbin constitute one “establishment.” United States Steel Corp. v. Brown, 441 S.W.2d 405, 1969 Ky. LEXIS 313 ( Ky. 1969 ).

9. Appeals.

An appeal from an administrative decision is not the equivalent of any other civil action to be filed with a Circuit Court, but is to be treated simply as any appeal within the court system and therefore, subject to strictly enforce procedural rules. Hence, KRS 413.310 (now repealed), which provides that time spent by a plaintiff in a penitentiary does not count for purposes of the statute of limitations, is not applicable to such appeals. Pollitt v. Kentucky Unemployment Ins. Com., 635 S.W.2d 485, 1982 Ky. App. LEXIS 223 (Ky. Ct. App. 1982).

Cited:

United States Steel Corp. v. Brown, 441 S.W.2d 405, 1969 Ky. LEXIS 313 ( Ky. 1969 ); Adkins v. Commonwealth, 614 S.W.2d 950, 1981 Ky. App. LEXIS 233 (Ky. Ct. App. 1981); Wells v. Jones, 662 S.W.2d 849, 1983 Ky. App. LEXIS 312 (Ky. Ct. App. 1983).

Opinions of Attorney General.

Noncertified personnel, such as county school bus drivers, do not get unemployment compensation during vacation periods if they have reasonable assurance of reemployment when school again starts, and such assurance can be written, oral, or implied; a dispute as to whether the reasonable assurance of reemployment exists can be litigated by a referee’s hearing. OAG 80-483 .

Research References and Practice Aids

ALR

Insurance agents or salesmen as within coverage of social security or unemployment compensation acts. 39 A.L.R.3d 872.

Termination of employment because of pregnancy as affecting right to employment compensation. 51 A.L.R.3d 254.

Construction of phrase “establishment” or “factory, establishment or other premises” within unemployment compensation statute rendering employee ineligible during labor dispute or strike at such location. 60 A.L.R.3d 11.

Construction of phrase “stoppage of work” in statutory provision denying unemployment compensation benefits during stoppage resulting from labor dispute. 61 A.L.R.3d 693.

Labor dispute disqualification as applicable to striking employee who is laid off subsequent employment during strike period. 61 A.L.R.3d 766.

What constitutes participation or direct interest in, or financing of, labor dispute or strike within disqualification provisions or unemployment compensation acts. 62 A.L.R.3d 314.

Refusal of nonstriking employee to cross picket line as justifying denial of unemployment compensation benefits. 62 A.L.R.3d 380.

Application of labor dispute disqualification for benefits to locked out employee. 62 A.L.R.3d 437.

General principles pertaining to statutory disqualification for unemployment compensation benefits because of strike or labor dispute. 63 A.L.R.3d 88.

341.370. Disqualifications — Length of time.

  1. A worker shall be disqualified from receiving benefits for the duration of any period of unemployment with respect to which:
    1. He has failed without good cause either to apply for available, suitable work when so directed by the employment office or the secretary or to accept suitable work when offered him, or to return to his customary self-employment when so directed by the secretary; or
    2. He has been discharged for misconduct or dishonesty connected with his most recent work, or from any work which occurred after the first day of the worker’s base period and which last preceded his most recent work, but legitimate activity in connection with labor organizations or failure to join a company union shall not be construed as misconduct; or
    3. He has left his most recent suitable work or any other suitable work which occurred after the first day of the worker’s base period and which last preceded his most recent work voluntarily without good cause attributable to the employment. No otherwise eligible worker shall be disqualified from receiving benefits for:
      1. Leaving his next most recent suitable work which was concurrent with his most recent work;
      2. Leaving work which is one hundred (100) road miles or more, as measured on a one (1) way basis, from his home to accept work which is less than one hundred (100) road miles from his home;
      3. Accepting work which is a bona fide job offer with a reasonable expectation of continued employment; or
      4. Leaving work to accompany the worker’s spouse to a different state, military base of assignment, or duty station that is one hundred (100) road miles or more, as measured on a one (1) way basis, from the worker’s home when the spouse is reassigned by the military.
  2. A worker shall be disqualified from receiving benefits for any week with respect to which he knowingly made a false statement to establish his right to or the amount of his benefits, and, within the succeeding twenty-four (24) months, for the additional weeks immediately following the date of discovery, not to exceed a total of fifty-two (52), as may be determined by the secretary.
  3. No worker shall be disqualified under paragraph (b) or (c) of subsection (1) of this section unless the employer, within a reasonable time as prescribed by regulations promulgated by the secretary, notifies the Education and Workforce Development Cabinet and the worker in writing of the alleged voluntary quitting or the discharge for misconduct. Nothing in this subsection shall restrict the right of the secretary to disqualify a worker whose employer has refused or failed to notify the Education and Workforce Development Cabinet of the alleged voluntary quitting or discharge for misconduct, if the alleged voluntary quitting or discharge for misconduct is known to the secretary prior to the time benefits are paid to the worker. The exercise of the right by the secretary, in the absence of timely notice from the employer, shall not relieve the employer’s reserve account or reimbursing employer’s account of benefit charges under the provisions of subsection (3) of KRS 341.530 .
  4. As used in this section and in subsection (3) of KRS 341.530 , “most recent” work shall be construed as that work which occurred after the first day of the worker’s base period and which last preceded the week of unemployment with respect to which benefits are claimed; except that, if the work last preceding the week of unemployment was seasonal, intermittent, or temporary in nature, most recent work may be construed as that work last preceding the seasonal, intermittent, or temporary work.
  5. No worker shall be disqualified or held ineligible under the provisions of this section or KRS 341.350 , who is separated from employment pursuant to a labor management contract or agreement, or pursuant to an established employer plan, program, or policy, which permits the employer to close the plant or facility for purposes of vacation or maintenance.
  6. “Discharge for misconduct” as used in this section shall include but not be limited to, separation initiated by an employer for falsification of an employment application to obtain employment through subterfuge; knowing violation of a reasonable and uniformly enforced rule of an employer; unsatisfactory attendance if the worker cannot show good cause for absences or tardiness; damaging the employer’s property through gross negligence; refusing to obey reasonable instructions; reporting to work under the influence of alcohol or drugs or consuming alcohol or drugs on employer’s premises during working hours; conduct endangering safety of self or co-workers; and incarceration in jail following conviction of a misdemeanor or felony by a court of competent jurisdiction, which results in missing at least five (5) days work.
  7. “Duration of any period of unemployment,” as that term is used in this section, shall be the period of time beginning with the worker’s discharge, voluntary quitting, or failure to apply for or accept suitable work and running until the worker has worked in each of ten (10) weeks, whether or not consecutive, and has earned ten (10) times his weekly benefit rate in employment covered under the provisions of this chapter or a similar law of another state or of the United States.

HISTORY: 4748g-9: amend. Acts 1942, ch. 20, §§ 4, 10; 1948, ch. 216, § 12; 1950, ch. 206, § 1; 1952, ch. 154, §§ 12, 13; 1958, ch. 4, § 8; 1962, ch. 223, § 2; 1964, ch. 168, § 3; 1974, ch. 74, Art. VI, §§ 102, 107(21); 1978, ch. 389, § 23, effective July 1, 1978; 1980, ch. 188, § 272; 1980, ch. 385, § 6, effective July 15, 1980; 1982, ch. 261, § 5, effective July 1, 1982; 1984, ch. 326, § 7, effective July 13, 1984; 1986, ch. 26, § 5, effective July 15, 1986; 1990, ch. 6, § 4, effective July 13, 1990; 1996, ch. 266, § 12, effective July 15, 1996; 1996, ch. 271, § 20, effective July 15, 1996; 2006, ch. 211, § 148, effective July 12, 2006; 2006, ch. 252, Pt. XXVIII, § 11, effective April 25, 2006; 2009, ch. 11, § 78, effective June 25, 2009; 2017 ch. 172, § 1, effective June 29, 2017.

NOTES TO DECISIONS

  1. Construction.
  2. Rejection of Suitable Work.
  3. Collective Bargaining Agreement.
  4. Misconduct.
  5. Voluntarily Leaving Work.
  6. — Temporary Employment.
  7. — Retirement.
  8. — Self-Employment.
  9. —Effect on Benefits.
  10. Good Cause.
  11. Shutdown by Employer.
  12. Temporary Shutdown.
  13. Multiple Employers.
  14. Evidence.
  15. Burden of Proof.
  16. Conclusions of Law.
  17. Absence from Work.
  18. Alcohol Use.
  19. Move by Employer.
  20. Discharge.
  21. Distinction Between Discharge and Voluntary Termination.
  22. False Statement.

Cited:

1. Construction.

The conditions of benefit disqualifications shall be strictly construed. Broadway & Fourth Ave. Realty Co. v. Allen, 365 S.W.2d 302, 1962 Ky. LEXIS 285 ( Ky. 1962 ). See Brown Hotel Co. v. Napier, 365 S.W.2d 311, 1962 Ky. LEXIS 289 ( Ky. 1962 ).

Unemployment insurance benefits are a statutory right granted by the General Assembly, which has the right to set the standard; accordingly, the court holds that a willful or wanton, or bad faith, finding, is not an additional requirement when the employee is discharged for conduct specifically identified in KRS 341.370(6). Ky. Unemployment Ins. Comm'n v. Cecil, 381 S.W.3d 238, 2012 Ky. LEXIS 158 ( Ky. 2012 ).

2. Rejection of Suitable Work.

Employees who did not sign job lists of positions available while their employer’s business was shut down for a vacation period because the lists were full when they saw them had rejected “suitable work” where the bargaining agreement clearly spelled out that notices would be posted and that first priority would be given to those employees ineligible for vacation pay and there was some evidence that employer later increased the number of available positions but that the employees failed to inquire as to that possibility. Murray Operation of Tappan Co. v. Kentucky Unemployment Ins. Com., 583 S.W.2d 100, 1979 Ky. App. LEXIS 426 (Ky. Ct. App. 1979) (decision prior to 1982 amendment).

Where bargaining agreement placed no duty on employees to apply for positions available during vacation shutdown, but agreement directed the posting of job lists, set out wages to be paid for such work and impliedly recognized that only a limited number of positions would be available, such work could not be considered “unsuitable” merely because employees may have been paid a lower hourly rate than their regular jobs and employees who failed to sign up for such jobs were not entitled to benefits. Murray Operation of Tappan Co. v. Kentucky Unemployment Ins. Com., 583 S.W.2d 100, 1979 Ky. App. LEXIS 426 (Ky. Ct. App. 1979) (decision prior to 1982 amendment).

3. Collective Bargaining Agreement.

Where it is claimed that an offer of suitable work has been refused in accordance with the terms of a collective bargaining agreement, the question of whether the claimants are entitled to unemployment benefits for the period after such refusal turns upon an interpretation of the controlling bargaining agreement. Ross Bros. Constr. Co. v. Curnette, 670 S.W.2d 489, 1984 Ky. App. LEXIS 460 (Ky. Ct. App. 1984).

Because the employer’s work offers were illegal under the collective bargaining agreement, the unemployment compensation claimants had good cause to refuse the offer without being disqualified for unemployment benefits. Ross Bros. Constr. Co. v. Curnette, 670 S.W.2d 489, 1984 Ky. App. LEXIS 460 (Ky. Ct. App. 1984).

4. Misconduct.

Persistent or chronic absenteeism without notice or excuse in the face of continued warnings from the employer constitutes such misconduct as requires a denial of benefits or of the charging of benefits paid to an employer’s reserve account. Broadway & Fourth Ave. Realty Co. v. Crabtree, 365 S.W.2d 313, 1962 Ky. LEXIS 290 ( Ky. 1962 ).

Where the sum and substance of the hearing officer’s decision was that the claimants were fired because someone else was dishonest and the commission, by its adoption of the facts, agreed, the referee’s use of the language “proximate cause” instead of the statutory test of “connected with” may have evidenced a poor choice of words, but it did not change any legislative standard. J. T. Nelson Co. v. Comstock, 636 S.W.2d 896, 1982 Ky. App. LEXIS 231 (Ky. Ct. App. 1982).

Where a fuel truck driver was dismissed for alleged misconduct, in that he was unavailable to work on a Friday and Saturday during one (1) week, but the evidence showed that the employee rarely worked on Fridays or Saturdays, and that he had not been notified that he was supposed to work on that particular Friday and Saturday, the commission properly found that the employee had committed no misconduct which would have disqualified him from receiving unemployment benefits. Ford Bulk, Inc. v. Hardwick, 642 S.W.2d 96, 1982 Ky. App. LEXIS 270 (Ky. Ct. App. 1982).

Where the evidence showed that the department store employee knew of, and had agreed to work under, the store’s written policy prohibiting employees from engaging in sales transactions with friends and relatives, her subsequent checking out of purchases made by her mother and her sister constituted a willful disregard of the employer’s reasonable rule and justified her discharge for misconduct. Kentucky Unemployment Ins. Com. v. King, 657 S.W.2d 250, 1983 Ky. App. LEXIS 319 (Ky. Ct. App. 1983).

There is no right to reject the tasks of employment on the basis that work methods have changed and the employee suspects (without trying it) that he will be unable to satisfactorily do the new assignment, and where an employee manifests an intent to disobey the reasonable instructions of his employer, the denial of unemployment compensation benefits on the basis of misconduct is proper. Lancaster v. Trumbo, 660 S.W.2d 954, 1983 Ky. App. LEXIS 372 (Ky. Ct. App. 1983).

Where there was substantial evidence in the record which indicated that an order to clean the public square was within sanitation workers’ ability to perform and would not result in any undue hardship and was, in essence, a reasonable request, and it was undisputed that when the subject was first brought up, the workers’ refused to perform such work and continued in that refusal, there was substantial evidence in the record to support the action of the Unemployment Insurance Commission in holding that they were disqualified under the provisions of this section on the grounds of discharge for misconduct. Lancaster v. Trumbo, 660 S.W.2d 954, 1983 Ky. App. LEXIS 372 (Ky. Ct. App. 1983).

An employer is entitled to the faithful and obedient service of his employee, and failure to render same may constitute misconduct by the employee; however, the employer has the burden of proving misconduct and the rule of strict construction applies. Shamrock Coal Co. v. Taylor, 697 S.W.2d 952, 1985 Ky. App. LEXIS 660 (Ky. Ct. App. 1985).

It is reasonable for an employer to expect employees to refrain from making obscene gestures or using vulgar language in a belligerent manner when addressing him or her unless there is justifiable provocation, and such behavior constitutes misconduct. Unemployment Ins. Com. v. Dye, 731 S.W.2d 826, 1987 Ky. App. LEXIS 504 (Ky. Ct. App. 1987).

Where the employee motioned to the employer with his middle finger saying “up your ass,” characterization of his behavior as misconduct, resulting in denial of unemployment benefits, was not an infringement of his right of free speech guaranteed under the First Amendment of the federal constitution.Unemployment Ins. Com. v. Dye, 731 S.W.2d 826, 1987 Ky. App. LEXIS 504 (Ky. Ct. App. 1987).

Failure to give adequate information to the employer regarding the reason for absence and extent of illness constituted misconduct which disqualified the claimant for Unemployment Compensation benefits. Kentucky Unemployment Ins. Com. v. Gooslin, 756 S.W.2d 464, 1988 Ky. LEXIS 48 ( Ky. 1988 ).

Suspension for misconduct does not result in disqualification for unemployment compensation. A suspension does not commonly mean a separation from employment. Rather, during a suspension, employment with the employer continues. Thus, the Unemployment Insurance Commission erred in denying benefits to employees who had been suspended by their employer. Kentucky Unemployment Ins. Com. v. Jones, 809 S.W.2d 715, 1991 Ky. App. LEXIS 43 (Ky. Ct. App. 1991).

Denial of unemployment benefits on the basis of positive drug test results and the failure to truthfully complete a form requiring a listing of drugs used was proper as employees were sufficiently aware of the employer’s intention to maintain a drug-free workplace to overcome any deficiency in failing to receive a personal copy of the policy and providing false information in response to a reasonable inquiry can certainly constitute misconduct under this section. Smith v. Kentucky Unemployment Ins. Comm'n, 906 S.W.2d 362, 1995 Ky. App. LEXIS 133 (Ky. Ct. App. 1995).

Substantial evidence supported the denial of unemployment benefits to an employee under KRS 341.370 as numerous maintenance logs, counseling notes, and messages documented the employee’s careless and unreasonable failure to perform the employee’s job duties, as instructed, over a period approaching a year; the employee’s failure to perform maintenance tasks was not a matter of mere inefficiency, but constituted a disregard of and unspoken refusal to complete the reasonable job assignments and the instructions of an employer. Holbrook v. Ky. Unemployment Ins. Comm'n, 290 S.W.3d 81, 2009 Ky. App. LEXIS 75 (Ky. Ct. App. 2009).

Although an employee was terminated for “unsatisfactory performance of duties,” the phrase did not prohibit a finding that misconduct played a role in the termination under KRS 341.370(1); the employee was fired, not simply for incompetence, but because of the employee’s refusal to perform work as ordered over a lengthy period of time. Runner v. Commonwealth, 323 S.W.3d 7, 2010 Ky. App. LEXIS 112 (Ky. Ct. App. 2010).

Where a teacher was discharged after being charged with assault, violating a domestic violence order, carrying a concealed weapon, and stalking, she was ineligible to receive unemployment benefits under KRS 341.370 because she engaged in disqualifying misconduct in engaging in conduct unbecoming a teacher under KRS 161.790 . Hutchison v. Ky. Unemployment Ins. Comm'n, 329 S.W.3d 353, 2010 Ky. App. LEXIS 222 (Ky. Ct. App. 2010).

As there was substantial evidence supporting the finding that the employee was repeatedly tardy, and given this, and the court’s finding that the employee was discharged for tardiness, the Kentucky Unemployment Insurance Commission did not err in denying unemployment benefits, albeit on different grounds. Ky. Unemployment Ins. Comm'n v. Cecil, 381 S.W.3d 238, 2012 Ky. LEXIS 158 ( Ky. 2012 ).

Appellee former employee was discharged from her employment for reasons other than misconduct connected with the workplace under KRS 341.370 and, thus, entitled to unemployment insurance benefits because her conduct in becoming angry and then biting herself was a result of a psychological condition. Masonic Homes of Ky., Inc. v. Ky. Unemployment Ins. Comm'n, 382 S.W.3d 884, 2012 Ky. App. LEXIS 218 (Ky. Ct. App. 2012).

Trial court properly affirmed a decision by the Kentucky Unemployment Insurance Commission affirming an appeals referee's determination that an employee was qualified to receive unemployment benefits upon finding that the employee was discharged for reasons other than work-related misconduct because the record was replete with conflicting evidence related to the events culminating in the employee's termination, a video recording, which the employer argued was an integral part of its case, was not presented to the referee or made a part of the administrative record, and the employer raised the specter of violations of administrative regulations for the first time before the trial court. Sunrise Children's Servs. v. Ky. Unemployment Ins. Comm'n, 515 S.W.3d 186, 2016 Ky. App. LEXIS 33 (Ky. Ct. App. 2016).

Circuit court erred in reversing a decision by the Kentucky Unemployment Insurance Commission to deny benefits to former employee because the employee committed a knowing violation of the employer's sexual harassment/personal conduct policy and therefore committed misconduct, making him ineligible to receive unemployment benefits where the employer's sexual harassment/personal conduct policy was both reasonable and uniformly enforced, the employee had been trained about the employer's policy and his duties to report as a supervisor and admittedly failed to do so. Commonwealth v. Hourigan, 2017 Ky. App. LEXIS 359 (Ky. Ct. App. July 21, 2017), review denied, ordered not published, 2017 Ky. LEXIS 563 (Ky. Dec. 7, 2017).

Although a teacher’s violation of conduct unbecoming a teacher and discriminatory treatment policies could not serve as a basis for the county board of education’s finding of misconduct as those policies were not specific expectations of behavior, the Kentucky Unemployment Insurance Commission’s decision that the teacher was disqualified from receiving unemployment compensation benefits was nonetheless affirmed where the evidence showed that the teacher had provided a student with the correct answers to an online quiz on more than one occasion, that conduct was an act of dishonesty, and thus, the teacher had been discharged for misconduct. Alford v. Ky. Unemployment Ins. Comm'n, 568 S.W.3d 367, 2018 Ky. App. LEXIS 322 (Ky. Ct. App. 2018).

5. Voluntarily Leaving Work.

Where the track closed at the end of a meet, any agreement that might have been made by pari-mutuel workers at the track, whether or not made through their union as “agent,” to leave work at the close of a meet was not an exercise of a choice of alternatives so as to be classifiable as a voluntary election to leave the work. Churchill Downs, Inc. v. Kentucky Unemployment Ins. Com., 454 S.W.2d 347, 1970 Ky. LEXIS 274 ( Ky. 1970 ).

Where worker accepted employment on condition that she would receive a raise at a certain time, but she continue working despite employer’s failure to grant such raise, the pay raise was no longer a condition of ongoing employment and any subsequent pay raises became negotiable, with the employer being under no contractual obligation to grant a specific request for a raise; employer’s denial of worker’s subsequent request for raise was within its right and did not render work unsuitable for worker so as to warrant her resignation and, therefore, worker voluntarily quit suitable employment without good cause and was not entitled to unemployment compensation. H & S Hardware v. Cecil, 655 S.W.2d 38, 1983 Ky. App. LEXIS 337 (Ky. Ct. App. 1983).

Where the employee continued to work for employer for nearly one (1) year after being assigned additional job responsibilities, that one (1) factor standing by itself did not support the ultimate conclusion of acquiescence or voluntary quitting when its import was negated by the parallel findings that the employee assumed his increased duties only temporarily and consistently reminded his employer of that fact. Nichols v. Kentucky Unemployment Ins. Com., 677 S.W.2d 317, 1984 Ky. App. LEXIS 593 (Ky. Ct. App. 1984).

Fact that an employer is no longer legally obligated to keep an employee's job open under the Family Medical Leave Act (FMLA) does not mean that the employee is not entitled to unemployment benefits in the event of termination; therefore, a request for unemployment benefits should not have been denied because an employee diagnosed with cancer did not leave her work voluntarily where an employer made the choice to terminate the employee due to the fact that she could not return to work after her 12 week leave under the FMLA. Hicks v. Ky. Unemployment Ins. Comm'n, 2015 Ky. App. LEXIS 160 (Ky. Ct. App. Nov. 20, 2015).

6. — Temporary Employment.

An employee who accepts a job which he knows in advance to be temporary does not voluntarily leave when the job ceases to exist. Kentucky Unemployment Ins. Com. v. American Nat'l Bank & Trust Co., 367 S.W.2d 260, 1963 Ky. LEXIS 18 ( Ky. 1963 ).

7. — Retirement.

Employees who voluntarily joined retirement plan requiring retirement at certain age and retired voluntarily also quit their employment voluntarily and any payments made to them should not be charged to their former employers’ reserve accounts. Kentucky Unemployment Ins. Com. v. Kroehler Mfg. Co., 352 S.W.2d 212, 1961 Ky. LEXIS 203 ( Ky. 1961 ).

Where employer adopted a compulsory retirement plan at the age of 65 with the approval of a committee elected by the various employees, an employee reaching the age of 65 and thereupon being retired did not leave his work voluntarily without good cause. Kentucky Unemployment Ins. Com. v. Young, 389 S.W.2d 451, 1965 Ky. LEXIS 387 ( Ky. 1965 ).

Where the evidence showed that employer had a plan for mandatory retirement of all employees at age 70 with substantial benefits, the claimant knew of the plan when he was hired, that his acceptance of the position with this knowledge was an act of volition, the commission’s finding that claimant left his employ voluntarily was supported by substantial evidence. McFadden v. Kentucky Unemployment Ins. Com., 588 S.W.2d 711, 1978 Ky. App. LEXIS 683 (Ky. Ct. App. 1978).

In determining whether an employee is deemed to have voluntarily quit his employment when terminated because he has reached a specific age, the Kentucky Unemployment Insurance Commission has applied a three-fold test: first, the mandatory retirement must have been pursuant to a general plan; second, the plan must provide benefits to the employee who is terminated upon reaching the mandatory retirement age; and third, there must be some tangible act on the part of the employee which denotes his acceptance of the terms of the plan including the provisions for mandatory retirement. McFadden v. Kentucky Unemployment Ins. Com., 588 S.W.2d 711, 1978 Ky. App. LEXIS 683 (Ky. Ct. App. 1978).

8. — Self-Employment.

Under subsection (2) of this section which prior to its amendment in 1980 provided that a worker was disqualified from receiving benefits when he voluntarily left work to become self-employed, applicant who had substantial farming and livestock brokerage business and was also banker, was self-employed where he was occupied full time by the farming and brokerage business after leaving bank, which gave him choice of giving up either banking or farming; thus, he was not entitled to unemployment benefits since he was not unemployed under this section. Coomer v. New Farmers Nat'l Bank, 611 S.W.2d 805, 1981 Ky. App. LEXIS 223 (Ky. Ct. App. 1981).

9. —Effect on Benefits.

While the voluntary quitting of a job without good cause may create an absolute bar to the charging of benefits against the employer’s reserve account, it is ground only for a temporary disqualification from receiving benefits out of the pooled account. Unemployment Ins. Com. v. Cochran Foil Co., 331 S.W.2d 903, 1960 Ky. LEXIS 139 ( Ky. 1960 ).

Lower court erred in reversing the Kentucky Unemployment Insurance Commission’s decision granting a former employee only two weeks of unemployment insurance benefits where the employee failed to sufficiently raise the issue of good cause for her voluntary resignation, and no substantial evidence of record supported a finding that the cancellation of the employee’s health benefits caused her to resign from her employment. Ky. Unemployment Ins. Comm'n v. Watts, 407 S.W.3d 569, 2013 Ky. App. LEXIS 174 (Ky. Ct. App. 2013).

10. Good Cause.

The quitting of a job by a woman for the purpose of joining her husband at a distant place is not “good cause” within the meaning of this section. Unemployment Ins. Com. v. Cochran Foil Co., 331 S.W.2d 903, 1960 Ky. LEXIS 139 ( Ky. 1960 ).

Where employee took time off to nurse her sick husband during which time she kept in touch daily with her employers and kept them abreast of developments and reported to her employers for work two days after her husband’s funeral, she did not quit her job without good cause. Cantrell v. Kentucky Unemployment Ins. Com., 450 S.W.2d 235, 1970 Ky. LEXIS 431 ( Ky. 1970 ).

When an employee declined to return to his former job after a temporary layoff, he was in effect leaving “his most suitable work voluntarily without good cause” and was not entitled to unemployment compensation benefits. Kentucky Unemployment Ins. Com. v. Day, 451 S.W.2d 656, 1970 Ky. LEXIS 415 ( Ky. 1970 ).

A requirement that an employee not wear a pants suit was not grounds for the employee to quit for “good cause” and entitle the employee to benefits under the act, for it is within an employer’s rights to set standards of dress which become guidelines for his employees. Kentucky Unemployment Ins. Com. v. Murphy, 539 S.W.2d 293, 1976 Ky. LEXIS 52 ( Ky. 1976 ).

Where employees stated that they declined to sign the job list during a vacation shutdown either because they didn’t like the type of work offered or because they felt they needed a vacation, neither reason constituted “good cause” for rejecting work. Murray Operation of Tappan Co. v. Kentucky Unemployment Ins. Com., 583 S.W.2d 100, 1979 Ky. App. LEXIS 426 (Ky. Ct. App. 1979) (decision prior to 1982 amendment).

The facts support the Commission’s conclusion that an employee left her job without good cause, where she left her work without permission to accompany her daughter to San Clemente, California, in an attempt to dissuade her son-in-law from deserting the United States Marine Corps. Helm v. Kentucky Unemployment Ins. Com., 600 S.W.2d 478, 1979 Ky. App. LEXIS 535 (Ky. Ct. App. 1979).

Where claimants received salary reductions ranging from 21% to 32% as a result of permanent transfer from one production line to another, they had good cause under this section for voluntarily quitting their jobs and were not disqualified from receiving unemployment compensation benefits. International Spike, Inc. v. Kentucky Unemployment Ins. Com., Dep't for Human Resources, 609 S.W.2d 374, 1980 Ky. App. LEXIS 392 (Ky. Ct. App. 1980).

“Good cause” exists only when the worker is faced with circumstances so compelling as to leave no reasonable alternative but loss of employment. H & S Hardware v. Cecil, 655 S.W.2d 38, 1983 Ky. App. LEXIS 337 (Ky. Ct. App. 1983).

“Good cause” for a worker voluntarily leaving his employment exists only when the worker is faced with circumstances so compelling as to leave no reasonable alternative but loss of employment. Raines v. Kentucky Unemployment Ins. Com., 669 S.W.2d 928, 1983 Ky. App. LEXIS 313 (Ky. Ct. App. 1983).

Where the employee could only show that he suffered a temporary reduction of five or six percent (5% or 6%) in his bonus, the loss was not shown to be significant enough or permanent enough to constitute good cause for voluntarily leaving his employment. Raines v. Kentucky Unemployment Ins. Com., 669 S.W.2d 928, 1983 Ky. App. LEXIS 313 (Ky. Ct. App. 1983).

Assuming that an alcoholic beverage licensee is prohibited by law from running a “fast cash” game to promote sales, an employee who refuses to assist in the enterprise and who is replaced for such refusal qualifies under subdivision (1)(c) of this section as having “good cause attributable to employment.” The fact that the employee was given the option to conduct the enterprise and avoid being replaced does not qualify as “a reasonable alternative.” Cobb v. King Kwik Minit Market, Inc., 675 S.W.2d 386, 1984 Ky. LEXIS 250 ( Ky. 1984 ).

Where the employee was expected to submit to a massive increase in his work hours to six full days a week, live in substandard housing, assume substantial new responsibilities, and did not receive any additional compensation except for an occasional gift of clothing and a limited amount of free meals and where employee was agreeable to these changes on a temporary basis and quit only when the employer attempted to impose them on him permanently, there was such an extensive modification of the original terms of the employee’s employment contract as to constitute circumstances so compelling as to leave him no alternative but to quit his job. Nichols v. Kentucky Unemployment Ins. Com., 677 S.W.2d 317, 1984 Ky. App. LEXIS 593 (Ky. Ct. App. 1984).

“Good cause” for voluntarily quitting work has been found to exist only when a worker is faced with circumstances so compelling as to leave no reasonable alternative but loss of employment. Kentucky Unemployment Ins. Com. v. Melvin's Grocery Co., 696 S.W.2d 791, 1985 Ky. App. LEXIS 649 (Ky. Ct. App. 1985).

The primary key in resolving the question of whether an employee quit for good cause must be based on who causes the employee to quit. Kentucky Unemployment Ins. Com. v. Melvin's Grocery Co., 696 S.W.2d 791, 1985 Ky. App. LEXIS 649 (Ky. Ct. App. 1985).

The mere fact that one who has part-time employment desires to leave to obtain full-time employment is not such good cause as can subject an employer to the penalty of paying unemployment compensation when the new job falls through. Kentucky Unemployment Ins. Com. v. Melvin's Grocery Co., 696 S.W.2d 791, 1985 Ky. App. LEXIS 649 (Ky. Ct. App. 1985).

Kentucky Unemployment Insurance Commission’s factual findings were supported by substantial evidence; the employee failed to show discrimination, failed to establish good cause to justify quitting his position, and failed to follow the company grievance procedures. Thompson v. Ky. Unemployment Ins. Comm'n, 85 S.W.3d 621, 2002 Ky. App. LEXIS 1657 (Ky. Ct. App.), sub. op., 85 S.W.3d 621, 2002 Ky. App. LEXIS 1847 (Ky. Ct. App. 2002).

Employees were ineligible for unemployment benefits because, although the employer offered continued work under certain conditions, the employees instead accepted the employer’s offer of a voluntary separation incentive and bonus, and thus the employees were unable to establish good cause attributable to employment as required by KRS 341.370(1)(c). Brownlee v. Commonwealth, 287 S.W.3d 661, 2009 Ky. LEXIS 151 ( Ky. 2009 ).

Employee should not have been denied unemployment benefits where she was forced to abruptly relocate her employment 260 miles from home for an indefinite period of time and her only options were to move, commute with no information regarding the payment of expenses, or resign. Skees v. Ky. Unemployment Ins. Comm'n, 347 S.W.3d 467, 2011 Ky. App. LEXIS 137 (Ky. Ct. App. 2011).

11. Shutdown by Employer.

Where unemployment results from the discontinuance of operations by the employer, the reason for the discontinuance has no bearing at all on the right of the workman to draw benefits, even when the discontinuance is caused by a public law. Churchill Downs, Inc. v. Kentucky Unemployment Ins. Com., 454 S.W.2d 347, 1970 Ky. LEXIS 274 ( Ky. 1970 ).

12. Temporary Shutdown.

A logical standard in determining whether unemployment due to a temporary shutdown is voluntary would be to turn the result solely upon an interpretation of the controlling bargaining agreement; this rule merely entails an application of general contract law to determine whether the unemployment incurred was contemplated by the agreement and, if so, the employees are disqualified from collecting benefits. Murray Operation of Tappan Co. v. Kentucky Unemployment Ins. Com., 583 S.W.2d 100, 1979 Ky. App. LEXIS 426 (Ky. Ct. App. 1979) (decision prior to 1982 amendment).

Where plant was shut down for one (1) week pursuant to collective bargaining agreement which required shutdowns as vacation periods and which listed eligibility requirements for vacation, thereby recognizing that some employees would not be compensated during shutdown, employees who were not entitled to vacation pay during a shutdown were voluntarily unemployed and were not entitled to benefits. Murray Operation of Tappan Co. v. Kentucky Unemployment Ins. Com., 583 S.W.2d 100, 1979 Ky. App. LEXIS 426 (Ky. Ct. App. 1979) (decision prior to 1982 amendment).

Where the handbook which was distributed to all employees at the time of their employment stated that the company reserved the right to temporarily shut down the plant and to require its employees to take their vacations during the shutdown period, the employees who were unemployed during company shutdowns were ineligible for unemployment insurance benefits on the grounds that they were voluntarily unemployed since they had accepted employment with the knowledge that shutdowns might occur. Kentucky Unemployment Ins. Com. v. Goode, 631 S.W.2d 28, 1982 Ky. App. LEXIS 206 (Ky. Ct. App. 1982).

13. Multiple Employers.

Where employee voluntarily quit present employment for a new job and then was discharged by his new employer, the previous employer had to be given notice and a chance to protest an award to the employee of unemployment compensation if any part of the award was chargeable against his reserve account. Babb v. Bullitt, 310 Ky. 211 , 220 S.W.2d 394, 1949 Ky. LEXIS 879 ( Ky. 1949 ).

14. Evidence.

Where the findings of fact of the commission that the claimant had quit her job voluntarily and without good cause and was therefore disqualifed from unemployment benefits were supported by substantial evidence, the Circuit Court erred in setting aside the order of the commission. Kentucky Unemployment Ins. Com. v. Springer, 437 S.W.2d 501, 1969 Ky. LEXIS 442 ( Ky. 1969 ).

Kentucky Unemployment Insurance Commission was justified in relying upon additional evidence of record to determine how the employee came to be separated from her employment rather than drawing negative inferences from a series of unchecked blocks in the notice of potential benefit charges document. Ky. Unemployment Ins. Comm'n v. Watts, 407 S.W.3d 569, 2013 Ky. App. LEXIS 174 (Ky. Ct. App. 2013).

15. Burden of Proof.

The employer trying to show a disqualification under this section must bear the burden to defeat the recovery of the claim. Brown Hotel Co. v. Edwards, 365 S.W.2d 299, 1962 Ky. LEXIS 284 ( Ky. 1962 ).

The burden was on the claimant to show that his refusal to return to his former job after a temporary lay-off was for “good cause.” Kentucky Unemployment Ins. Com. v. Day, 451 S.W.2d 656, 1970 Ky. LEXIS 415 ( Ky. 1970 ).

16. Conclusions of Law.

Where after an unemployment compensation hearing the referee concluded that the claimants were discharged by virtue of dishonesty of fellow employees and that that reason did not preclude them from acquiring unemployment benefits, the commission erred when, after adopting those factual determinations, it drew a contrary conclusion of law. J. T. Nelson Co. v. Comstock, 636 S.W.2d 896, 1982 Ky. App. LEXIS 231 (Ky. Ct. App. 1982).

17. Absence from Work.

There was substantial evidence to justify a finding that a claimant had engaged in misconduct connected with his most recent work justifying his dismissal and a denial of unemployment benefits where he was absent from work as a result of being incarcerated for unpaid fines. Kentucky Unemployment Ins. Com. v. Stirrat, 688 S.W.2d 750, 1984 Ky. App. LEXIS 471 (Ky. Ct. App. 1984).

Applicant was not entitled to unemployment benefits due to his absenteeism because he had been suspended less than a year earlier for his attendance problems, and he admitted that he was aware that any further issues would have resulted in his dismissal; moreover, he applicant was warned again when he did not appear at work and before he left early. Prior to leaving early, the applicant failed to provide adequate justification. W. Ky. Coca-Cola Bottling Co. v. Runyon, 410 S.W.3d 113, 2013 Ky. LEXIS 297 ( Ky. 2013 ).

It was error for a trial court to reverse the Kentucky Unemployment Insurance Commission’s (Commission) decision that an employee was not disqualified from receiving unemployment insurance benefits due to excessive absences and tardies because substantial evidence supported the Commission’s decision that the employee proved good cause for the employee’s absences and tardies due to personal illness, including depression, family illness, and car problems. Ky. Unemployment Ins. Comm'n v. Campbell County Det. Ctr., 2013 Ky. App. LEXIS 86 (Ky. Ct. App. June 7, 2013).

18. Alcohol Use.

The fact that an employee is an alcoholic does not preclude either the finding of voluntary quitting or of misconduct; on the contrary, the use of alcohol affecting one’s ability to work, such as appearing at work inebriated, would seem to disqualify the claimant from unemployment benefits. Egnew v. Kentucky Unemployment Ins. Com., 687 S.W.2d 866, 1984 Ky. App. LEXIS 647 (Ky. Ct. App. 1984).

Judgment that an employee was fired for misconduct pursuant to KRS 341.370(6) and therefore not entitled to unemployment benefits was appropriate. The employee was fired for appearing for work with a blood alcohol level of .047; this act of inappropriate behavior met the definition of misconduct under the Unemployment Insurance Act. Ky. Unemployment Ins. Comm'n v. Duro Bag Mfg. Co., 250 S.W.3d 351, 2008 Ky. App. LEXIS 93 (Ky. Ct. App. 2008).

19. Move by Employer.

The commission should consider whether a claimant’s work became unsuitable by virtue of his employer’s move before addressing his reasons for leaving the company. If his employer’s move rendered the claimant’s work unsuitable, then the claimant is not disqualified from receiving benefits under subdivision (1)(c) of this section. Brock v. Kentucky Unemployment Ins. Com., 693 S.W.2d 69, 1985 Ky. App. LEXIS 619 (Ky. Ct. App. 1985).

20. Discharge.

Once a school board elects to terminate a teacher’s limited contract, it is discharging that teacher from employment within the meaning of the work “discharge,” as used in subdivision (1)(b) of this section; the fact that the board may opt to discharge the teacher by the easier method of nonrenewal, rather than by instituting a termination proceeding pursuant to KRS 161.790 , is of no significance. Evans v. Montgomery County Bd. of Education, 712 S.W.2d 358, 1986 Ky. App. LEXIS 1125 (Ky. Ct. App. 1986).

Kentucky Unemployment Insurance Commission’s finding that the employee was tardy many times in violation of the employer’s policy was supported by substantial evidence, but the conclusion that the employee was not terminated for tardiness, but for not signing a post decision making leave statement, was clearly erroneous, because the employee was terminated for tardiness as shown by the record; although the employee could have kept her job by signing the agreement, she was not terminated for not signing, she was discharged for repeated violation of the code concerning attendance, and the Commission erred in finding that the employee was disqualified from benefits on grounds she was discharged for refusing to sign the agreement, for purposes of KRS 341.370(6). Ky. Unemployment Ins. Comm'n v. Cecil, 381 S.W.3d 238, 2012 Ky. LEXIS 158 ( Ky. 2012 ).

21. Distinction Between Discharge and Voluntary Termination.

Where employee chose to quit work after notification from employer that she would be terminated, but nine days before the actual date of termination, employee’s termination was not voluntary; however, unemployment benefits would begin from the employer’s date of termination, rather than as of the date employee quit. Barren River Mental Health-Mental Retardation Bd., Inc. v. Bailey, 783 S.W.2d 886, 1990 Ky. App. LEXIS 16 (Ky. Ct. App. 1990).

Employee did not leave her job voluntarily and was not disqualified from benefits because there was no evidence that she was unskilled or incompetent at her job as a selector, but had a legitimate inability to pass a physical agility test for reasons beyond her control—a non-work-related stress fracture in her foot. Ky. Unemployment Ins. Comm'n v. Blakeman, 419 S.W.3d 752, 2013 Ky. App. LEXIS 89 (Ky. Ct. App. 2013).

22. False Statement.

Since no language indicates otherwise qualified employees are exempt from being disqualified for benefits if they provide knowingly false information, neither an appellate court nor any other court may not impute that exception this statute. Therefore, it was immaterial that the false statements made by a former employee were immaterial to the determination of her entitlement; it was determined that an employer's request for the employee to provide nursing care for two halls was unreasonable and that her refusal to do so did not result in a termination for misconduct. Downey v. Ky. Unemployment Ins. Comm'n, 479 S.W.3d 85, 2015 Ky. App. LEXIS 41 (Ky. Ct. App. 2015).

Cited:

Kentucky Unemployment Ins. Com. v. Reynolds Metals Co., 360 S.W.2d 746, 1962 Ky. LEXIS 224 ( Ky. 1962 ); Brown Hotel Co. v. Elmore, 365 S.W.2d 309, 1962 Ky. LEXIS 288 ( Ky. 1962 ); Kentucky Unemployment Ins. Com. v. Anaconda Aluminum Co., 433 S.W.2d 119, 1968 Ky. LEXIS 259 ( Ky. 1968 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Esterle, Working Women’s Woes Under Wimberly and Their Gladness Under Guerra: Pregnancy and Employment Issues, volume 52, No. 2, Spring 1988 Ky. Bench & B. 13.

Schoening & Guilfoyle, The Legal Implications of a Reduction in Force, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 12.

ALR

Employee’s insubordination as barring unemployment compensation. 26 A.L.R.3d 1333.

Work-connected inefficiency or negligence as “misconduct” barring unemployment compensation. 26 A.L.R.3d 1356.

Discharge for absenteeism or tardiness as affecting right to unemployment compensation. 58 A.L.R.3d 674.

Harassment or other mistreatment by employer or supervisor as “good cause” justifying abandonment of employment. 76 A.L.R.3d 1089.

Eligibility for unemployment compensation as affected by claimant’s refusal to comply with requirement as to dress, grooming, or hygiene. 88 A.L.R.3d 150.

Leaving or refusing employment for religious reasons as barring unemployment compensation. 12 A.L.R.4th 611.

Employee’s act or threat of physical violence as bar to unemployment compensation. 20 A.L.R.4th 637.

341.380. Benefits, how paid — Calculation of amount — Increase in maximum weekly benefit rate.

  1. All benefits shall be paid through employment offices, or such other agencies as may be designated by regulations of the secretary. Claims for all payments of benefits shall be made in accordance with regulations of the secretary.
  2. The weekly benefit rate payable to an eligible worker for weeks of unemployment shall, except as provided in KRS 341.390 , be an amount equal to one and three thousand seventy-eight ten-thousandths percent (1.3078%) of his total base-period wages, except that no worker’s weekly benefit amount shall be less than thirty-nine dollars ($39), nor more than the maximum rate as determined in accordance with subsection (3) of this section. For claims effective on or after January 1, 2012, the weekly benefit rate shall, except as provided in KRS 341.390 , be one and one thousand nine hundred twenty-three ten-thousandths percent (1.1923%) of his total base-period wages, except that no worker’s weekly benefit amount shall be less than thirty-nine dollars ($39) nor more than the maximum rate as determined in accordance with subsection (3) of this section.
  3. Prior to the first day of July of each year the secretary shall determine the average weekly wage for insured employment by dividing the average monthly employment, as obtained by dividing the total monthly employment reported by subject employers for the preceding calendar year by twelve (12), into the total wages reported by such employers for such calendar year and dividing by fifty-two (52). Fifty-five percent (55%) of the amount thus obtained, adjusted to the nearest multiple of one dollar ($1), shall constitute the maximum weekly benefit rate for those workers whose benefit year commences on or after the first day of July of such year and prior to the first day of July of the next following year; beginning in calendar year 1999, or any subsequent year in which the increase in the weekly benefit rate calculation set forth in subsection (2) of this section should take effect, sixty-two percent (62%) of the average weekly wage, adjusted to the nearest multiple of one dollar ($1), shall constitute the maximum weekly benefit rate for those workers whose benefit year commences on or after the first day of July of that year and prior to the first day of July of the next following year; except that for the benefit years beginning on or after July 1, 1982, if the “trust fund balance” as of September 30 immediately preceding the benefit year is less than one hundred twenty million dollars ($120,000,000), the maximum weekly benefit rate shall not exceed the prior year’s maximum weekly benefit rate. If such “trust fund balance” as of September 30 immediately preceding the benefit year:
    1. Equals or exceeds one hundred twenty million dollars ($120,000,000), but is less than two hundred million dollars ($200,000,000), the maximum weekly benefit rate shall not exceed the prior year’s maximum weekly benefit rate by more than six percent (6%). The rate thus determined shall be adjusted to the nearest multiple of one dollar ($1);
    2. Equals or exceeds two hundred million dollars ($200,000,000), but is less than three hundred million dollars ($300,000,000), the maximum weekly benefit rate shall not exceed the prior year’s maximum weekly benefit rate by more than eight percent (8%). The rate thus determined shall be adjusted to the nearest multiple of one dollar ($1);
    3. Equals or exceeds three hundred million dollars ($300,000,000), but is less than four hundred million dollars ($400,000,000), the maximum weekly benefit rate shall not exceed the prior year’s maximum weekly benefit rate by more than ten percent (10%). The rate thus determined shall be adjusted to the nearest multiple of one dollar ($1);
    4. Equals or exceeds four hundred million dollars ($400,000,000), but is less than five hundred million dollars ($500,000,000), the maximum weekly benefit rate shall not exceed the prior year’s maximum weekly benefit rate by more than twelve percent (12%). The rate thus determined shall be adjusted to the nearest multiple of one dollar ($1);
    5. Equals or exceeds five hundred million dollars ($500,000,000), the maximum weekly benefit rate shall not exceed the prior year’s maximum weekly benefit rate by more than fifteen percent (15%). The rate thus determined shall be adjusted to the nearest multiple of one dollar ($1); and
    6. Is such that it resulted in the establishment of an employer contribution rate schedule, as provided for in KRS 341.270 , for the current calendar year which has a higher minimum rate than the schedule in effect for the immediately preceding calendar year, the maximum weekly benefit rate shall not exceed the prior year’s maximum weekly benefit rate.
  4. The maximum amount of benefits payable to any worker within any benefit year shall be the amount equal to whichever is the lesser of:
    1. Twenty-six (26) times his weekly benefit rate; or
    2. One-third (1/3) of his base-period wages, except that no worker’s maximum amount shall be less than fifteen (15) times his weekly benefit rate. Such maximum amount, if not a multiple of one dollar ($1), shall be adjusted to the nearest multiple of one dollar ($1).

History. 4748g-10, 4748g-11: amend. Acts 1942, ch. 19, §§ 6, 15; 1948, ch. 216, § 9; 1950, ch. 206, § 1; 1952, ch. 154, § 11; 1958, ch. 4, § 9; 1960, ch. 111, § 2; 1962, ch. 223, § 3; 1966, ch. 28, § 1; 1972, ch. 261, § 1; 1974, ch. 74, Art. VI, § 107(31); 1978, ch. 142, § 1, effective June 17, 1978; 1978, ch. 389, § 24, effective July 1, 1978; 1980, ch. 385, § 7, effective April 1, 1980; 1982, ch. 261, § 6, effective July 1, 1982; 1986, ch. 26, § 6, effective July 15, 1986; 1998, ch. 167, § 3, effective July 15, 1998; 2000, ch. 547, § 11, effective July 14, 2000; 2010 (1st Ex. Sess.), ch. 5, § 9, effective August 28, 2010.

NOTES TO DECISIONS

  1. Second Series Unauthorized.
  2. Payment.
1. Second Series Unauthorized.

A second series of benefit payments without any intervening employment is unauthorized. Kentucky Unemployment Ins. Com. v. Anaconda Aluminum Co., 433 S.W.2d 119, 1968 Ky. LEXIS 259 ( Ky. 1968 ).

2. Payment.

Administrative law judge (ALJ) correctly excluded unemployment compensation benefits when he calculated an employee's average weekly wage because unemployment compensation benefits were not wages where they were not payments for services rendered and were not received from the employer,but were to offset workers compensation benefits. Jewell v. Ford Motor Co., 462 S.W.3d 713, 2015 Ky. LEXIS 1632 ( Ky. 2015 ).

Cited:

Lexington Cemetery Co. v. Commonwealth, 297 Ky. 851 , 181 S.W.2d 699, 1944 Ky. LEXIS 839 ( Ky. 1944 ).

341.390. Deductions from benefits.

There shall be deducted from the benefit rate determined for a worker in accordance with subsection (2) of KRS 341.380 :

  1. Eighty percent (80%), adjusted to the nearest multiple of one dollar ($1), of the amount of wages earned by such worker during the week of unemployment with respect to which he claims benefits. For the purpose of this subsection, wages shall also include amounts earned by benefit claimants in self employment provided such earnings otherwise meet the definition of wages as contained in KRS 341.030 ;
  2. The amount of remuneration which the worker has received or is receiving with respect to such week of unemployment (adjusted to the nearest multiple of one dollar ($1)) in the form of remuneration in lieu of notice; and
    1. The amount of compensation payable to an individual for any week which begins after March 31, 1980, and which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment under a plan maintained or contributed to a chargeable or base-period employer, shall be reduced (but not below zero (0)) by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment which is reasonably attributable to such week; except that this reduction shall not be made if the worker contributed to the pension, retirement or retired pay, annuity, or other similar periodic payment. (3) (a) The amount of compensation payable to an individual for any week which begins after March 31, 1980, and which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment under a plan maintained or contributed to a chargeable or base-period employer, shall be reduced (but not below zero (0)) by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment which is reasonably attributable to such week; except that this reduction shall not be made if the worker contributed to the pension, retirement or retired pay, annuity, or other similar periodic payment.
    2. No reduction shall be made under this section by reason of the receipt of a pension if the services performed by the worker during the base period (or remuneration received for such services) for such employer did not affect the worker’s eligibility for, or increase the amount of, such pension, retirement or retired pay, annuity, or other similar periodic payment. The conditions specified by this subsection shall not apply to pensions paid under the Social Security Act or the Railroad Retirement Act of 1974 (or the corresponding provisions of prior law). Payments made under such acts shall be treated solely in the manner specified by paragraph (a) of this subsection.
    3. If Public Law 94-566, Public Law 96-364 or the federal act which amends either for any cause shall become inoperative in its application, or stayed pendente lite, as to deductions of such compensation, then subsection (3) of this section, by virtue of that fact, shall likewise and to the same extent become inoperative as to such deductions.

History. 4748g-10: amend. Acts 1942, ch. 20, §§ 5, 11; 1948, ch. 216, § 14; 1950, ch. 206, § 1; 1952, ch. 154, § 15; 1972, ch. 21, § 27; 1980, ch. 385, § 8, effective July 15, 1980; 1982, ch. 67, § 7, effective July 15, 1982; 1988, ch. 106, § 8, effective July 15, 1988; 1998, ch. 167, § 4, effective July 15, 1998; 2000, ch. 19, § 1, effective July 14, 2000.

Compiler’s Notes.

The Social Security Act, referred to in subsection (3)(b), is compiled as 42 USCS § 301 et seq.

The Railroad Retirement Act of 1974, referred to in subsection (3)(b), is compiled as 45 USCS § 231 et seq.

Public Law 94-566, referred to in subsection (3)(c), may be found primarily as notes following 26 USCS § 3304.

Public Law 96-364, the “Multiemployer Pension Plan Amendments Act of 1980,” referred to in subsection (3)(c), affected various sections primarily in Titles 29 and 26 of the United States Code. See notes following 29 USCS § 1001.

Opinions of Attorney General.

The 1980 amendment to this section, which added subsections (3)(a) and (3)(b), is not unconstitutional. OAG 80-487 .

341.392. Deduction and withholding of child support obligations from benefits.

  1. A worker filing a new claim for unemployment benefits shall, at the time of filing such claim, disclose whether or not he owes child support obligations as defined under this section. If any such worker discloses that he owes child support obligations, and is determined to be eligible for unemployment benefits, the secretary shall notify the state or local child support enforcement agency enforcing such obligation that the worker has been determined to be eligible for unemployment benefits.
  2. The secretary shall deduct and withhold from any unemployment benefits payable to a worker that owes child support obligations:
    1. The amount specified by the worker to the secretary to be deducted and withheld under this subsection, if neither (b) nor (c) applies;
    2. The amount, if any, determined pursuant to an agreement submitted to the secretary under 42 U.S.C. sec. 654 (Section 454(20)(b)(i) of the Social Security Act) by the state or local child support enforcement agency if (c) is not applicable; or
    3. Any amount required to be so deducted and withheld from such unemployment benefits pursuant to legal process as that term is defined in the Social Security Act properly served upon the secretary.
    1. Any amount deducted and withheld under this section shall be paid by the secretary to the appropriate state or local child support enforcement agency. (3) (a) Any amount deducted and withheld under this section shall be paid by the secretary to the appropriate state or local child support enforcement agency.
    2. Any amount deducted and withheld under this section shall for all purposes be treated as if it were paid to the worker as unemployment benefits and paid by such worker to the state or local child support enforcement agency in satisfaction of the worker’s child support obligations.
  3. For purposes of this section, the term “unemployment benefits” shall mean any compensation payable under this chapter (including amounts payable by the secretary pursuant to an agreement under any federal law providing compensation, assistance, or allowances with respect to unemployment).
  4. The provisions set forth in this section apply only if appropriate arrangements have been made for reimbursement by the state or local child support enforcement agency for the administrative costs incurred by the secretary under this section which are attributable to child support obligations being enforced by the state or local child support enforcement agency.
  5. The term “child support obligations” is defined for purposes of these provisions as including only obligations which are being enforced pursuant to a plan prescribed in 42 U.S.C. sec. 654 (Section 454 of the Social Security Act) which has been approved by the Secretary of Health and Human Services under 42 U.S.C. secs. 651 -662 (Part D of Title IV of the Social Security Act).
  6. The term “state or local child support enforcement agency” as used in these provisions means any agency of a state or a political subdivision thereof operating pursuant to a plan described in this section.

History. Enact. Acts 1982, ch. 67, § 1, effective July 15, 1982; 1998, ch. 167, § 5, effective July 15, 1998.

341.395. Information to be given to individual filing new claim — Deduction and withholding of income tax.

  1. An individual filing a new claim for unemployment compensation shall, at the time of filing the claim, be advised that:
    1. Unemployment compensation is subject to federal and state income tax;
    2. Requirements exist pertaining to estimated tax payments;
    3. The individual may elect to have federal income tax deducted and withheld from the individual’s payment of unemployment compensation at the amount specified in the Federal Internal Revenue Code; and
    4. The individual shall be permitted to change a previously elected withholding status one (1) time during the individual’s benefit year.
  2. Amounts deducted and withheld from unemployment compensation shall remain in the unemployment fund until transferred to the federal taxing authority as a payment of income tax.
  3. The secretary shall follow all procedures specified by the United States Department of Labor and the Federal Internal Revenue Service pertaining to the deducting and withholding of income tax.
  4. Amounts shall be deducted and withheld in accordance with the priorities established in administrative regulations promulgated by the secretary.

History. Enact. Acts 1996, ch. 266, § 13, effective July 15, 1996.

341.400. Notice to workers.

Each subject employer shall post and maintain in places readily accessible to his workers printed statements concerning such regulations or such matters as the secretary prescribes. Each subject employer shall make available to his workers copies of such printed statements and such materials relating to claims for benefits as the secretary prescribes. Such printed statements and materials shall be supplied by the cabinet without cost to the employer or workers.

History. 4748g-11: amend. Acts 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, § 107(23), (31).

341.410. Determination of insured status — Notification of worker — Appeal.

The secretary acting through his duly authorized representatives shall, upon request, determine the insured status of a worker. If a worker is found to have fully insured status, as defined in KRS 341.090(3), the Office of Unemployment Insurance shall notify all interested parties. If found to be not fully insured, the division shall notify the worker. The secretary may, at any time, make further determinations as may affect the worker’s eligibility for benefits or may set aside, reconsider, modify, or amend a determination at any time on the basis of additional information or to correct a clerical mistake. The secretary may by regulation prescribe what constitutes a determination as used in this section and KRS 341.420 (2) and (3). Any further determination made pursuant to this section may be appealed pursuant to KRS 341.420 .

History. 4748g-11: amend. Acts 1948, ch. 216, § 15; 1950, ch. 206, § 1; 1972, ch. 21, § 28; 1974, ch. 74, Art. VI, § 107(23), (31); 1990, ch. 133, § 2, effective July 13, 1990; 2006, ch. 211, § 149, effective July 12, 2006; 2007, ch. 62, § 3, effective June 26, 2007; 2019 ch. 146, § 63, effective June 27, 2019.

NOTES TO DECISIONS

Cited:

Babb v. Bullitt, 310 Ky. 211 , 220 S.W.2d 394, 1949 Ky. LEXIS 879 ( Ky. 1949 ); Kentucky Unemployment Ins. Com. v. Anaconda Aluminum Co., 433 S.W.2d 119, 1968 Ky. LEXIS 259 ( Ky. 1968 ).

341.415. Recovery and recoupment limitations.

    1. Any person who has received any sum as benefits under this chapter or any other state’s unemployment insurance statutes or any United States Department of Labor unemployment insurance benefit program, providing the secretary has signed a reciprocal agreement with such other state or the United States Department of Labor as provided in KRS 341.145 , while any condition for the receipt of such benefits was not fulfilled in his case, or while he was disqualified from receiving benefits, or if he has received benefits in weeks for which he later receives a back pay award, shall, in the discretion of the secretary, either have such sum deducted from any future benefits payable to him under this chapter or repay the Office of Unemployment Insurance, Department of  Workforce Investment, for the fund a sum equal to the amount so received by him. (1) (a) Any person who has received any sum as benefits under this chapter or any other state’s unemployment insurance statutes or any United States Department of Labor unemployment insurance benefit program, providing the secretary has signed a reciprocal agreement with such other state or the United States Department of Labor as provided in KRS 341.145 , while any condition for the receipt of such benefits was not fulfilled in his case, or while he was disqualified from receiving benefits, or if he has received benefits in weeks for which he later receives a back pay award, shall, in the discretion of the secretary, either have such sum deducted from any future benefits payable to him under this chapter or repay the Office of Unemployment Insurance, Department of  Workforce Investment, for the fund a sum equal to the amount so received by him.
    2. If after due notice, the recipient of such sum fails to remit or arrange for remittance of the sum, the sum may be collected in the manner provided in KRS 341.300(2) for collection of past-due contributions and any sums so collected shall be credited to the pooled account or the appropriate reimbursing employer account.
    3. The appropriate reimbursing employer account shall not receive credit for sums collected under this subsection or KRS 341.550(2)(b) if a determination has been made that an improper benefit payment established after October 21, 2013, was due to the reimbursing employer, or an agent of the employer, in accordance with the provisions of KRS 341.530(4)(a) and (b). The sums collected shall be credited to the pooled account.
    4. If any benefit was paid as a result of office error as defined by administrative regulation, there shall be no recoupment or recovery of an improperly paid benefit, except by deduction from any future benefits payable to him under this chapter. For purposes of this section, overpayments as a result of a reversal of entitlement to benefits in the appeal or review process shall not be construed to be the result of office error.
  1. At or after the commencement of an action under subsection (1) of this section, attachment may be had against property of the recipient of improperly paid benefits in the manner provided in KRS 341.300(3).
  2. A lien on a parity with state, county, and municipal ad valorem tax liens, is hereby created in favor of the office upon all property of any recipient of improperly paid benefits. This lien shall be for a sum equal to the amount of the overpayment finally determined and shall continue until the amount of the overpayment plus any subsequent assessment of additional improperly paid benefits, penalty, interest, and fees are fully paid. The lien shall commence from such time as the recipient has exhausted or abandoned the appeal procedure set forth in this chapter and the amount of the overpayment is finally fixed. A notice of lien may be filed in the same manner as that provided for in KRS 341.310 .
  3. Any amount paid to a person as benefits, which he has been found liable to repay or to have deducted from future benefits under subsections (1), (2), and (3) of this section, which has neither been repaid nor so deducted within a period of five (5) years following the last day of the benefit year within which it was paid, may be deemed to be uncollectible and shall be permanently charged to the pooled account, except that if such payment was made by reason of fraudulent representations, no future benefits shall be paid such person within a period of ten (10) years of the last day of the benefit year within which such payments were made at which time these amounts may be declared uncollectible. Nothing in this subsection shall be deemed to affect collection of improperly paid benefits pursuant to a judgment or other legal remedy.
  4. In the event benefits have been paid as a result of a false statement, misrepresentation, or concealment of material information by a recipient of benefits and have not been repaid by the recipient within one (1) calendar year from the date of the first notice, interest at the rate of one and five-tenths percent (1.5%) per month or any part thereof, shall be imposed on and added to the unpaid balance each successive month, providing due notice has been given to the recipient. Such interest shall be paid into the unemployment compensation administration account.
  5. A recipient of benefits paid as a result of a false statement, misrepresentation, or concealment of material information by the recipient shall be assessed a fifteen percent (15%) penalty of the amount of improperly paid benefits. The penalty under this subsection shall be collected in the same manner as improperly paid benefits in this section and paid into the unemployment trust fund.
  6. The deduction from future benefits specified in subsection (1) of this section shall be limited to twenty-five percent (25%) of the benefit amount otherwise payable under this chapter unless the overpayment resulted from a backpay award, false statement, misrepresentation, or concealment of material information by a recipient of benefits. In these instances, the rate of deduction shall be one hundred percent (100%). The rate of deduction from benefits payable by another state or the United States of America shall be determined by the applicable state or federal statute.

History. Enact. Acts 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, § 107(21), (23); 1978, ch. 389, § 26, effective July 1, 1978; 1980, ch. 385, § 9, effective July 15, 1980; 1982, ch. 261, § 8, effective July 15, 1982; 1988, ch. 106, § 1, effective July 15, 1988; 1992, ch. 133, § 3, effective July 14, 1992; 1996, ch. 266, § 14, effective July 15, 1996; 1998, ch. 167, § 6, effective July 15, 1998; 2006, ch. 211, § 150, effective July 12, 2006; 2013, ch. 45, § 1, effective June 25, 2013; 2019 ch. 146, § 64, effective June 27, 2019.

Legislative Research Commission Notes.

(6/25/2013). Under the authority of KRS 7.136(1), the Reviser of Statutes has inserted paragraph designations into subsection (1) of this statute. The words in the text were not changed, except for the insertion of the word “that” after the word “made” in paragraph (c) to correct a manifest clerical or typographical error.

NOTES TO DECISIONS

  1. Application.
  2. Action by Commission.
  3. Administrative Regulation.
  4. Recoupment.
  5. Reimbursing Employers.
  6. Deductibility of Unemployment Insurance Benefits.
1. Application.

The proviso in subsection (3) of KRS 341.530 that no reimbursing employer shall be relieved of charges by reason of subsection (3) can only be sensibly read as a part of that subsection, and may not be used to alter the language of the other subsections of the statute. Under this section, a reimbursing employer is not relieved of the direct financial responsibility to the division just because the former employee voluntarily quit, was discharged for misconduct, or continued employment; however, this subsection does not apply to situations where benefits were paid to a former employee of a reimbursing employer due to departmental error. Kentucky Unemployment Ins. Com. v. Kaco Unemployment Ins. Fund, Inc., 793 S.W.2d 845, 1990 Ky. App. LEXIS 91 (Ky. Ct. App. 1990).

2. Action by Commission.

Where employees received unemployment benefits for weeks in which they also received vacation pay in accordance with the union contract, the Kentucky Unemployment Insurance Commission was required to proceed under this section to recover benefits improperly paid upon its having been determined that the workers were not entitled to the benefits that were given them. Kentucky Unemployment Ins. Com. v. General Electric Co., 473 S.W.2d 808, 1971 Ky. LEXIS 160 ( Ky. 1971 ).

3. Administrative Regulation.

Administrative regulation, 903 KAR 5:250 section 2(2), which excludes “overpayments as a result of a reversal of entitlement to benefits” from the definition of “departmental error,” was inconsistent with subsection (1) of this section and therefore invalid. Kentucky Unemployment Ins. Com. v. Murphy, 714 S.W.2d 488, 1986 Ky. App. LEXIS 1174 (Ky. Ct. App. 1986).

4. Recoupment.

Subsection (1) of this section manifests a legislative policy that when a claimant has applied for benefits in good faith, not concealing any material information, and the department has awarded him or her benefits through an erroneous determination of law or fact, the benefits paid are not subject to recoupment. Kentucky Unemployment Ins. Com. v. Murphy, 714 S.W.2d 488, 1986 Ky. App. LEXIS 1174 (Ky. Ct. App. 1986).

Recoupment of 1978 overpayments in 1982, when recoupment would not have been possible under this section because it contained a three (3)-year statute of limitations prior to its amendment in 1980 extending the limitation to five (5) years, before the prior three (3)-year statute of limitations had run against claimant deprived claimant of no rights protected by the Constitution or laws of the United States. Cassidy v. Adams, 872 F.2d 729, 1989 U.S. App. LEXIS 4836 (6th Cir. Ky. 1989 ).

The Unemployment Insurance Commission is not permitted to recoup unemployment payments from union employees who are subsequently awarded back pay during a litigated labor dispute for the period for which the unemployment insurance was also paid. Gatliff Coal Co. v. Anderson, 814 S.W.2d 564, 1991 Ky. LEXIS 115 ( Ky. 1991 ).

5. Reimbursing Employers.

Subsection (2) of KRS 341.550 applies to all benefits paid through error, and therefore trial court properly held that unemployment benefits erroneously paid for former employees of employers who elect to reimburse the Division of Unemployment Insurance for benefits paid to their former employees in lieu of paying contributions to the division are charged to the pooled account, and not the reimbursing employers. Kentucky Unemployment Ins. Com. v. Kaco Unemployment Ins. Fund, Inc., 793 S.W.2d 845, 1990 Ky. App. LEXIS 91 (Ky. Ct. App. 1990).

6. Deductibility of Unemployment Insurance Benefits.

There was no reversible error in the lower court’s instructions to have the jury deduct the amounts of unemployment insurance from the maximum damages it could have awarded employees who were wrongfully terminated for union activity. Simpson County Steeplechase Ass'n v. Roberts, 898 S.W.2d 523, 1995 Ky. App. LEXIS 74 (Ky. Ct. App. 1995).

In an employee’s suit brought under KRS 342.197 , even if the trial court erred in reducing the jury’s award of damages by the amounts that the employee received in state unemployment benefits, the employee was not prejudiced since, under KRS 341.415 , he would have been required to reimburse the state for the duplicate wages if the reduction had not been made. Griffin Indus. v. Mullen, 2006 Ky. App. LEXIS 96 (Ky. Ct. App. Mar. 31, 2006).

Cited:

J. T. Nelson Co. v. Comstock, 636 S.W.2d 896, 1982 Ky. App. LEXIS 231 (Ky. Ct. App. 1982).

Opinions of Attorney General.

Where several county employees were awarded back pay to cover a period from their illegal dismissal by the county judge/executive to their actual termination date by the fiscal court, a recoupment was due the unemployment insurance trust fund for unemployment benefits paid to those employees during that same period. OAG 82-57 .

Research References and Practice Aids

ALR

Repayment of unemployment compensation benefits erroneously paid. 90 A.L.R.3d 987.

Appeals

341.420. Appointment of referees — Appeals — Effect on other proceedings.

  1. The secretary shall appoint one (1) or more impartial referees according to KRS 341.125 to hear and decide appealed claims.
  2. A party to a determination may file an appeal to a referee as to any matter therein within fifteen (15) days after the date such determination was mailed to his last known address.
  3. If benefits are allowed by a determination of the secretary, or a decision of a referee, the commission, the secretary, or a reviewing-court, such benefits shall be paid promptly without regard to the pendency of an appeal or period for filing an appeal therefrom. If a determination or decision allowing benefits is modified or reversed by a subsequent determination or decision, benefits shall be paid or denied for weeks of unemployment thereafter in accordance with such modification or denial. No injunction, supersedeas, stay or other writ or process suspending payment of such benefits shall be issued.
  4. Unless such appeal is withdrawn, a referee, after affording the parties reasonable opportunity for a fair hearing, shall affirm or modify the determination. The parties shall be duly notified of his decision, together with the reasons therefor, which shall be deemed to be the final decision unless within fifteen (15) days after the date of mailing of such decision, further appeal is initiated under KRS 341.430 .
  5. No finding of fact or law, judgment, conclusion, or final order made with respect to a claim for unemployment compensation under this chapter may be conclusive or binding in any separate or subsequent action or proceeding in another forum, except proceedings under this chapter, regardless of whether the prior action was between the same or related parties or involved the same facts.

History. 4748g-11: amend. Acts 1948, ch. 216, § 16; 1950, ch. 206, § 1; 1952, ch. 154, § 16; 1972, ch. 21, § 29; 1974, ch. 70, § 1; 1974, ch. 74, Art. VI, § 107(31); 1992, ch. 133, § 4, effective July 14, 1992; 2006, ch. 211, § 151, effective July 12, 2006.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Final Decision.
1. Constitutionality.

Unemployment compensation law was not unconstitutional on the ground that the allowance of a claim affecting the employer’s reserve account was the assessment of a tax against the employer for which judicial review of decisions by referees was not provided as this section, KRS 341.430 and 341.450 provided for such judicial review. Kentucky Unemployment Compensation Com. v. Chenault & Orear, 295 Ky. 562 , 174 S.W.2d 767, 1943 Ky. LEXIS 275 ( Ky. 1943 ).

2. Final Decision.

The legislature provides for the finality of the referee’s decision under this section and KRS 341.430 and 341.450 in the absence of appeal to the Commission and, where there is such appeal and it is denied, the referee’s decision becomes the final decision of the Commission and appeal to the Circuit Court is expressly provided for by KRS 341.450 . Kentucky Unemployment Compensation Com. v. Chenault & Orear, 295 Ky. 562 , 174 S.W.2d 767, 1943 Ky. LEXIS 275 ( Ky. 1943 ).

Cited:

Brown Hotel Co. v. Elmore, 365 S.W.2d 309, 1962 Ky. LEXIS 288 ( Ky. 1962 ); Brown Hotel Co. v. Edwards, 365 S.W.2d 299, 1962 Ky. LEXIS 284 ( Ky. 1962 ); Shamrock Coal Co. v. Taylor, 697 S.W.2d 952, 1985 Ky. App. LEXIS 660 (Ky. Ct. App. 1985).

341.430. Review by commission.

  1. The commission may on its own motion affirm, modify, or set aside any decision of a referee on the basis of the evidence previously submitted in such case, or direct the taking of additional evidence, or may permit any of the parties to such decision to initiate further appeals before it. The commission may remove to itself or transfer to another referee the proceedings on any claims pending before a referee.
  2. An application for review by the commission of any administrative determination affecting an employing unit’s liability, contribution rate, or amount of contributions may be filed by such employing unit within twenty (20) days after notice of such determination was mailed to such employing unit’s last known address.
  3. Any proceedings before the commission shall be heard and determined by the entire commission composed of three (3) members, except that no member of the commission shall participate in any case in which he is an interested party, and the chairman shall act alone in the absence or disqualification of any other member. The commission shall promptly notify the parties to any proceedings of its findings and decisions.

History. 4748g-11: amend. Acts 1950, ch. 206, § 1; 1988, ch. 106, § 10, effective July 15, 1988.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Final Decision.
  3. Ruling Upheld.
1. Constitutionality.

Unemployment compensation law was not unconstitutional on the ground that the allowance of a claim affecting the employer’s reserve account was the assessment of a tax against the employer for which judicial review of decisions by referees was not provided as KRS 341.420 , this section and KRS 341.450 provided for such judicial review. Kentucky Unemployment Compensation Com. v. Chenault & Orear, 295 Ky. 562 , 174 S.W.2d 767, 1943 Ky. LEXIS 275 ( Ky. 1943 ).

2. Final Decision.

The legislature provides for the finality of the referee’s decision under this section and KRS 341.420 and 341.450 in the absence of appeal to the Commission and, where there is such appeal and it is denied, the referee’s decision becomes the final decision of the Commission and appeal to the Circuit Court is expressly provided for by KRS 341.450 . Kentucky Unemployment Compensation Com. v. Chenault & Orear, 295 Ky. 562 , 174 S.W.2d 767, 1943 Ky. LEXIS 275 ( Ky. 1943 ).

3. Ruling Upheld.

Subsection (2) of KRS 341.550 applies to all benefits paid through error, and therefore trial court properly held that unemployment benefits erroneously paid for former employees of employers who elect to reimburse the Division of Unemployment Insurance for benefits paid to their former employees in lieu of paying contributions to the division are charged to the pooled account, and not the reimbursing employers. Kentucky Unemployment Ins. Com. v. Kaco Unemployment Ins. Fund, Inc., 793 S.W.2d 845, 1990 Ky. App. LEXIS 91 (Ky. Ct. App. 1990).

Because an employer disregarded the requirements in KRS 341.430(2), 341.450 , and 341.460 for appealing an agency decision and failed to name the proper parties in its complaint, it did not invoke the jurisdiction of the trial court; consequently, its complaint and amended complaint were properly dismissed. Bluegrass Auto., Inc. v. Ky. Unemployment Ins. Comm'n, 2008 Ky. App. LEXIS 304 (Ky. Ct. App. Oct. 3, 2008), review denied, ordered not published, 2009 Ky. LEXIS 295 (Ky. Apr. 15, 2009).

Kentucky Unemployment Insurance Commission was well within its discretion and in compliance with KRS 341.430(1) in returning an employee’s case to the referee to take additional evidence; the Commission was not required to address whether the employer was afforded due process regarding notice or whether it had good cause for missing the first hearing. Miller v. Ky. Unemployment Ins. Comm'n, 425 S.W.3d 92, 2013 Ky. App. LEXIS 148 (Ky. Ct. App. 2013).

Cited:

Brown Hotel Co. v. Edwards, 365 S.W.2d 299, 1962 Ky. LEXIS 284 ( Ky. 1962 ); Adkins v. Commonwealth, 614 S.W.2d 950, 1981 Ky. App. LEXIS 233 (Ky. Ct. App. 1981).

341.440. Procedure on review — Witness fees — Finality of decisions.

  1. The manner in which appeals are presented and hearings and appeals conducted shall be in accordance with regulations prescribed by the secretary for determining the rights of the parties, and such hearings to be conducted in a summary manner. A complete record shall be kept of all proceedings in connection with any appeal. All testimony at any hearing upon an appeal shall be recorded either stenographically or mechanically, but need not be transcribed unless further appealed. No examiner, referee or member of the commission shall participate in any hearing in which he is an interested party.
  2. Witnesses subpoenaed pursuant to proceedings under KRS 341.420 and 341.430 shall be allowed fees in accordance with rates allowed by law. Such fees and all expenses of proceedings before the Office of Unemployment Insurance, Department of Workforce Investment, or commission involving disputed claims shall be deemed a part of the expense of administering this chapter.
  3. In the absence of an appeal therefrom, decisions of the commission shall become final twenty (20) days after the date they are made.

History. 4748g-11: amend. Acts 1950, ch. 206, § 1; 1954, ch. 177, § 3; 1974, ch. 74, Art. VI, § 103; 2006, ch. 211, § 152, effective July 12, 2006; 2019 ch. 146, § 65, effective June 27, 2019.

NOTES TO DECISIONS

  1. Reconsideration of Decision.
  2. Finality.
1. Reconsideration of Decision.

Since decisions by the Unemployment Insurance Commission do not become final until 20 days after they are rendered, the Commission has jurisdiction to reconsider its decision. Travelodge International, Inc. v. Kentucky Unemployment Ins. Com., 710 S.W.2d 232, 1986 Ky. App. LEXIS 1049 (Ky. Ct. App. 1986).

There is no statutory or administrative procedure to reopen a final order denying unemployment benefits; the court has held that the Unemployment Insurance Commission had the authority to reconsider its original decision until the time that decision became final, 20 days after rendition, and KRS 341.440(3) specifies that in the absence of an appeal therefrom, decisions of the commission shall become final 20 days after the date they are made, and neither case law nor a regulation contemplate that the Commission would have authority to reopen a final decision, and thus the Commission would have been required to deny an employee’s motion to reopen the final order. Grimes v. Ky. Unemployment Ins. Comm'n, 340 S.W.3d 104, 2011 Ky. App. LEXIS 84 (Ky. Ct. App. 2011).

2. Finality.

Former employee could not appeal the original denial of her application for unemployment benefits, given that KRS 341.450(1) required an appeal to be brought within 20 days from the date of the commission’s decision, the employee did not follow the jurisdictional prerequisites for bringing an appeal, her appeal was dismissed, and the commission’s decision became final by operation of law under KRS 341.440(3). Grimes v. Ky. Unemployment Ins. Comm'n, 340 S.W.3d 104, 2011 Ky. App. LEXIS 84 (Ky. Ct. App. 2011).

Cited:

Brown Hotel Co. v. Edwards, 365 S.W.2d 299, 1962 Ky. LEXIS 284 ( Ky. 1962 ).

Research References and Practice Aids

Cross-References.

Fees of witnesses, KRS Chapter 421.

Judicial Review

341.450. Judicial review.

  1. Except as provided in KRS 341.460 , within twenty (20) days after the date of the decision of the commission, any party aggrieved thereby may, after exhausting his remedies before the commission, secure judicial review thereof by filing a complaint against the commission in the Circuit Court of the county in which the claimant was last employed by a subject employer whose reserve account or reimbursing employer account is affected by such claims. Any other party to the proceeding before the commission shall be made a defendant in such action. The complaint shall state fully the grounds upon which review is sought, assign all errors relied on, and shall be verified by the plaintiff or his attorney. The plaintiff shall furnish copies thereof for each defendant to the commission, which shall deliver one (1) copy to each defendant.
  2. Summons shall issue upon the complaint directing the commission to file answer within twenty (20) days after service thereof. Such summons shall be served upon a member of the commission, or upon such person as the commission designates, and such service shall be deemed complete service upon all members of the commission. The commission may be represented by any qualified attorney designated by the commission for that purpose or, at the request of the commission, by the Attorney General. With its answer, the commission shall certify and file as an exhibit with the court all documents and papers, and a transcript of all testimony taken in the matter, and orders made therein, together with its findings of fact and decision therein. If consented to by the plaintiff and the adverse party, an abstract of any portion of the record may be certified by the commission in lieu of certifying such portion of the record in full. The commission may certify to the court questions of law involved in any decision by it.
  3. Such actions, and the questions so certified, shall be heard by the court in a summary manner upon the record certified by the commission. The court on its own motion or on the motion of an interested party shall assign a date certain for the review. The clerk of the court shall notify the attorneys of record of the date assigned for review at least ten (10) days in advance thereof. The court shall enter judgment, affirming, modifying, or setting aside the order and the decision appealed from or determining the question of law certified to it by the commission, and may in advance of judgment, remand the case to the commission for further proceedings in accordance with the direction of the court.
  4. An appeal may be taken from the decision of the Circuit Court to the Court of Appeals, in the same manner, but not inconsistent with the provisions of this chapter, as is provided in equity cases.
  5. It shall not be necessary, in any judicial proceeding under this section or KRS 341.460 , to have entered exceptions to the rulings of the commission, and no bond shall be required for entering such appeal. Upon the final determination of such judicial proceeding, the commission shall enter an order in accordance with such determination. A petition for judicial review shall not act as a supersedeas or stay unless the commission shall so order.

History. 4748g-11: amend. Acts 1948, ch. 216, § 17; 1950, ch. 206, § 1; 1954, ch. 177, § 4; 1958, ch. 4, § 10; 1976 (Ex. Sess.), ch. 14, § 275, effective January 2, 1978; 1996, ch. 266, § 15, effective July 15, 1996.

NOTES TO DECISIONS

  1. In General.
  2. Constitutionality.
  3. Prerequisites for Review.
  4. Representative Appeal.
  5. Injunction.
  6. Parties.
  7. Verification Requirement.
  8. Indispensable Parties.
  9. Scope of Review.
  10. Hearing.
  11. Complaint.
  12. Final Decision.
  13. Procedure.
1. In General.

While this section provides that judicial review shall be heard in a summary manner, it does not change the general rule governing judicial review of administrative action. Brown Hotel Co. v. Edwards, 365 S.W.2d 299, 1962 Ky. LEXIS 284 ( Ky. 1962 ).

Judicial review of an award of the Unemployment Insurance Commission is governed by the rule that if the findings of fact are supported by substantial evidence of probative value, then they must be accepted as binding, and it must then be determined whether or not the administrative agency has applied the correct rule of law. Raines v. Kentucky Unemployment Ins. Com., 669 S.W.2d 928, 1983 Ky. App. LEXIS 313 (Ky. Ct. App. 1983).

2. Constitutionality.

Unemployment compensation law was not unconstitutional on the ground that the allowance of a claim affecting the employer’s reserve account was the assessment of a tax against the employer for which judicial review of decisions by referees was not provided as KRS 341.420 , 341.430 and this section provided for such judicial review. Kentucky Unemployment Compensation Com. v. Chenault & Orear, 295 Ky. 562 , 174 S.W.2d 767, 1943 Ky. LEXIS 275 ( Ky. 1943 ).

3. Prerequisites for Review.

Where locked-out employees were receiving unemployment benefits pending rehearing, unemployment insurance commission was awaiting rehearing of original order and, upon rehearing, a final decision could be entered denying employees their benefits, the basic requirements for judicial review under this section were not met in that employees were not aggrieved by the decision and they had not exhausted their administrative remedies before filing the complaint. Adkins v. Commonwealth, 614 S.W.2d 950, 1981 Ky. App. LEXIS 233 (Ky. Ct. App. 1981).

Because an employer disregarded the requirements in KRS 341.430(2), 341.450 , and 341.460 for appealing an agency decision and failed to name the proper parties in its complaint, it did not invoke the jurisdiction of the trial court; consequently, its complaint and amended complaint were properly dismissed. Bluegrass Auto., Inc. v. Ky. Unemployment Ins. Comm'n, 2008 Ky. App. LEXIS 304 (Ky. Ct. App. Oct. 3, 2008), review denied, ordered not published, 2009 Ky. LEXIS 295 (Ky. Apr. 15, 2009).

Former employee could not appeal the original denial of her application for unemployment benefits, given that KRS 341.450(1) required an appeal to be brought within 20 days from the date of the commission’s decision, the employee did not follow the jurisdictional prerequisites for bringing an appeal, her appeal was dismissed, and the commission’s decision became final by operation of law under KRS 341.440(3). Grimes v. Ky. Unemployment Ins. Comm'n, 340 S.W.3d 104, 2011 Ky. App. LEXIS 84 (Ky. Ct. App. 2011).

KRS 341.450(1) is not the appropriate vehicle to appeal from the Unemployment Insurance Commission’s denial of a motion to reopen. Grimes v. Ky. Unemployment Ins. Comm'n, 340 S.W.3d 104, 2011 Ky. App. LEXIS 84 (Ky. Ct. App. 2011).

4. Representative Appeal.

Appellant was not given right, by provision permitting appeals to court from Commission, to act for and on behalf of other employers. Stearns Coal & Lumber Co. v. Unemployment Compensation Com., 285 Ky. 249 , 147 S.W.2d 382, 1941 Ky. LEXIS 360 ( Ky. 1941 ).

5. Injunction.

A plea for postponement of a hearing under the Soldiers’ and Sailors’ Civil Relief Act should first be made before the Commission before seeking to enjoin a hearing in the Circuit Court on such grounds. Kentucky Unemployment Compensation Com. v. Chenault & Orear, 295 Ky. 562 , 174 S.W.2d 767, 1943 Ky. LEXIS 275 ( Ky. 1943 ).

6. Parties.

An employer’s appeal from a Circuit Court decision reversing the Unemployment Insurance Commission’s determination that an employee was not entitled to unemployment benefits was not required to be dismissed on the grounds that the employer had failed to name the Commission as a party to the appeal. J. T. Nelson Co. v. Comstock, 636 S.W.2d 896, 1982 Ky. App. LEXIS 231 (Ky. Ct. App. 1982).

Where an insurance agency failed to name the Division of Unemployment Insurance as a party in an appeal from an order of the Unemployment Insurance Commission which reversed a decision of the Commission, there was no subject matter jurisdiction and the appeal would be dismissed. Kentucky Unemployment Ins. Comm'n v. Providian Agency Group, Inc., 981 S.W.2d 138, 1998 Ky. App. LEXIS 65 (Ky. Ct. App. 1998).

7. Verification Requirement.

The failure of a party to strictly comply with the mandatory provisions of a statute authorizing an appeal from an administrative agency is jurisdictional; therefore, any such failure is fatal to the appeal. Accordingly, since the requirement for verification is mandated by subsection (1) of this section, the plaintiff’s failure to comply with the verification requirement was fatal to his petition on appeal. Pickhart v. United States Post Office, 664 S.W.2d 939, 1983 Ky. App. LEXIS 315 (Ky. Ct. App. 1983).

The verification requirement of subsection (1) of this section is mandatory and jurisdictional; therefore, timely but unverified petitions for review under this section must be dismissed. Monyhan v. Kentucky Unemployment Ins. Com., 709 S.W.2d 837, 1986 Ky. App. LEXIS 1059 (Ky. Ct. App. 1986).

An attorney’s signature on a petition for review of a decision by the Kentucky Unemployment Commission denying benefits claim was not sufficient compliance with the “verified complaint” requirement of this section to confer jurisdiction on the circuit court. Fisher v. Kentucky Unemployment Ins. Comm'n, 880 S.W.2d 891, 1994 Ky. App. LEXIS 40 (Ky. Ct. App. 1994).

Trial court properly dismissed an appeal of a decision of the Kentucky Unemployment Insurance Commission where: (1) the unemployment claimant failed to comply with the verification requirement under KRS 341.450(1) for bringing an appeal, (2) strict compliance with the statute was required as the statute was mandatory and jurisdictional, (3) the claimant’s argument that he should have been granted leave to file an amended complaint had been rejected in previous decisions, and (4) the Kentucky Supreme Court had rejected an argument calling for the adoption of a more lenient substantial compliance doctrine. Butler v. Ky. Unemployment Ins. Comm'n, 2004 Ky. App. LEXIS 131 (Ky. Ct. App.), sub. op., 2004 Ky. App. Unpub. LEXIS 582 (Ky. Ct. App. May 7, 2004), review denied, ordered not published, 2005 Ky. LEXIS 31 (Ky. Feb. 9, 2005).

Unemployment claimant’s request that the appellate court en banc revisit the verification requirement for bringing an appeal of decisions of the Kentucky Unemployment Insurance Commission and overrule its decisions in Pickhart, Monyhan, and Fisher, which held that an unemployment claimant had to strictly comply with the verification requirements in KRS 341.450(1), was denied. Butler v. Ky. Unemployment Ins. Comm'n, 2004 Ky. App. LEXIS 131 (Ky. Ct. App.), sub. op., 2004 Ky. App. Unpub. LEXIS 582 (Ky. Ct. App. May 7, 2004), review denied, ordered not published, 2005 Ky. LEXIS 31 (Ky. Feb. 9, 2005).

Because an unemployment benefits claimant failed to verify a petition for judicial review of a decision denying benefits and requiring reimbursement, the claimant did not comply with the verification requirement of KRS 341.450(1), which requires strict compliance; thus, his unverified petition for review did not confer jurisdiction upon the circuit court and was properly dismissed. His attorney’s signature on the petition, although it constituted a certification pursuant to CR 11, was not the equivalent of verification. Taylor v. Ky. Unemployment Ins. Comm'n & River Metals Recycling, LLC, 382 S.W.3d 826, 2012 Ky. LEXIS 171 ( Ky. 2012 ).

It was error to dismiss an employee's complaint to review the denial of unemployment compensation for lack of proper verification because the employee substantially complied with the statute by making a clear attempt at verification sufficient to invoke a reviewing court's jurisdiction when the employee signed a verification statement, after counsel signed the complaint, even though the employee's signature was not notarized. Wilson v. Ky. Unemployment Ins. Comm'n, 2016 Ky. App. LEXIS 111 (Ky. Ct. App. July 1, 2016), rev'd, 528 S.W.3d 336, 2017 Ky. LEXIS 359 ( Ky. 2017 ).

Trial court erred in dismissing a former employee's petition for review of the Kentucky Unemployment Insurance Commission's decision because the employee exhibited sufficient effort to comply with the statutory provisions to trigger the application of the doctrine of substantial compliance; the filing of the wrong draft, which included the verification statement but not the notarized signatures, indicated a good faith attempt at compliance with subsection (1). Longshore v. Ky. Unemployment Ins. Comm'n, 2016 Ky. App. LEXIS 194 (Ky. Ct. App. Nov. 23, 2016), vacated, 2017 Ky. LEXIS 459 (Ky. Oct. 25, 2017).

8. Indispensable Parties.

Statutes which establish judicial review of decisions of administrative bodies and which require certain parties to be joined transform these parties into indispensable ones; and the court had no authority to invoke the doctrine of substantial compliance where an indispensable party was notified but was not joined. Kentucky Unemployment Ins. Com. v. Carter, 689 S.W.2d 360, 1985 Ky. LEXIS 221 ( Ky. 1985 ).

9. Scope of Review.

The findings of fact of the Unemployment Insurance Commission which are supported by substantial evidence of probative value must be accepted as binding by the reviewing court; the duty of the court is to determine whether the agency misapplied the correct rule of law to the facts as found, not to substitute its judgment for that of the Commission. Kosmos Cement Co. v. Haney, 698 S.W.2d 819, 1985 Ky. LEXIS 274 ( Ky. 1985 ).

10. Hearing.

Since a reviewing court decides unemployment cases based on the certified record from the Unemployment Insurance Commission, and the court has no authority to consider evidence outside the record or to incorporate new proof into the record, any hearing before the Circuit Court serves the limited purpose of argument and argument alone on points of law; therefore, if the court errs in failing to hold a hearing, such error is harmless and will not support a reversal. Travelodge International, Inc. v. Kentucky Unemployment Ins. Com., 710 S.W.2d 232, 1986 Ky. App. LEXIS 1049 (Ky. Ct. App. 1986).

11. Complaint.

A clear attempt at verification of the complaint is sufficient, notwithstanding it does not reflect that an oath was rendered to a person authorized to receive same. Shamrock Coal Co. v. Taylor, 697 S.W.2d 952, 1985 Ky. App. LEXIS 660 (Ky. Ct. App. 1985).

12. Final Decision.

The legislature provides for the finality of the referee’s decision under KRS 341.420 , 341.430 and this section in the absence of appeal to the Commission and, where there is such appeal and it is denied, the referee’s decision becomes the final decision of the Commission and appeal to the Circuit Court is expressly provided for by this section. Kentucky Unemployment Compensation Com. v. Chenault & Orear, 295 Ky. 562 , 174 S.W.2d 767, 1943 Ky. LEXIS 275 ( Ky. 1943 ).

Although an employee contended that the Unemployment Insurance Commission’s denial of her motion to reopen was appealable under KRS 341.450(1), the Commission does not have any authority to reopen its decision once it becomes final, and since the finality of the original decision remains undisturbed, the time for appealing that decision is likewise unaffected by the denial of the motion to reopen; in this case, the time for appealing the original decision has long passed and the only possible way for the employee to seek review of the denial of her motion would be through a direct action seeking declaratory relief. Grimes v. Ky. Unemployment Ins. Comm'n, 340 S.W.3d 104, 2011 Ky. App. LEXIS 84 (Ky. Ct. App. 2011).

13. Procedure.

Default judgment should not have been entered against an unemployment benefits applicant because he was not required to file an answer; even though the statutory procedures for judicial review were inconsistent with the civil procedure rules, the statutory procedures prevailed. W. Ky. Coca-Cola Bottling Co. v. Runyon, 410 S.W.3d 113, 2013 Ky. LEXIS 297 ( Ky. 2013 ).

Cited:

Barnes v. Hall, 285 Ky. 160 , 146 S.W.2d 929, 1940 Ky. LEXIS 600 ( Ky. 1940 ), cert. denied, 314 U.S. 628, 62 S. Ct. 59, 86 L. Ed. 505, 1941 U.S. LEXIS 387 (1941); Shelley v. National Carbon Co., 285 Ky. 502 , 148 S.W.2d 686, 1941 Ky. LEXIS 420 ( Ky. 1941 ); Middleton’s Adm’x v. Middleton, 297 Ky. 109 , 179 S.W.2d 227, 1944 Ky. LEXIS 692 ( Ky. 1944 ); Kentucky Unemployment Ins. Co. v. Henry Fischer Packing Co., 259 S.W.2d 436, 1953 Ky. LEXIS 944 ( Ky. 1953 ); Tackett v. Kentucky Unemployment Ins. Com., 630 S.W.2d 76, 1982 Ky. App. LEXIS 204 (Ky. Ct. App. 1982); Smith v. Commonwealth, Dep’t of Justice, 686 S.W.2d 831, 1985 Ky. App. LEXIS 543 (Ky. Ct. App. 1985); Couch v. Ky. Unemployment Ins. Comm’n, — S.W.3d —, 2006 Ky. App. LEXIS 245 (Ky. Ct. App. 2006).

Opinions of Attorney General.

When an aggrieved party files an application for reconsideration, the time for taking appeal begins to run within 20 days after the date of the decision of the commission on the aggrieved party’s application for reconsideration, regardless of regulation 903 KAR 5:130 to the contrary. OAG 90-84 .

Research References and Practice Aids

Cross-References.

Attorneys for state agencies, employment of, KRS 12.210 .

341.460. Appeal to Franklin Circuit Court.

  1. In all cases of appeals arising under KRS 341.360(1)(a) or KRS 341.430(2) court review may be had as provided in KRS 341.450 except that review shall be had to the Franklin Circuit Court.
  2. A claimant who has been denied benefits under KRS 341.360(1)(a) may appeal for himself and for and on behalf of all other claimants similarly situated within that establishment or other establishments whose claims were denied by reason of the same alleged labor dispute or strike. An employer may appeal to the Franklin Circuit Court from the decision of the commission allowing benefits under KRS 341.360(1)(a) and all the workers in his establishment may be joined in such appeal.

History. 4748g-11: amend. Acts 1948, ch. 216, § 18; 1950, ch. 206, § 1.

Legislative Research Commission Note.

(6/26/2007). A technical correction has been made in this section to conform with internal renumbering of KRS 341.360 by the Reviser of Statutes under the authority of KRS 7.136 .

NOTES TO DECISIONS

1. Applicability.

Because an employer disregarded the requirements in KRS 341.430(2), 341.450 , and 341.460 for appealing an agency decision and failed to name the proper parties in its complaint, it did not invoke the jurisdiction of the trial court; consequently, its complaint and amended complaint were properly dismissed. Bluegrass Auto., Inc. v. Ky. Unemployment Ins. Comm'n, 2008 Ky. App. LEXIS 304 (Ky. Ct. App. Oct. 3, 2008), review denied, ordered not published, 2009 Ky. LEXIS 295 (Ky. Apr. 15, 2009).

Cited:

Johnson v. Kentucky Unemployment Ins. Com., 367 S.W.2d 253, 1963 Ky. LEXIS 16 ( Ky. 1963 ); Adkins v. Commonwealth, 614 S.W.2d 950, 1981 Ky. App. LEXIS 233 (Ky. Ct. App. 1981).

341.470. Protection of rights and benefits — Representation in proceedings before a referee or the commission.

  1. No agreement by a worker to waive, release, or commute his rights to benefits or any other rights under this chapter shall be valid. No agreement by any worker to pay any portion of a subject employer’s contributions, required under this chapter from such subject employer, shall be valid. No subject employer shall directly or indirectly make or require or accept any deductions from wages to finance the subject employer’s contributions required of him. In cases involving awards to a worker by an arbitrator, court, or other administrative body or mediator, the secretary may require the employer to withhold benefits paid under this chapter from the award and pay the amount withheld into the unemployment insurance trust fund. All subject employers are required to notify the Office of Unemployment Insurance, Department of Workforce Investment, prior to paying any back pay award.
  2. No worker claiming benefits shall be charged fees of any kind in any proceeding under this chapter by the commission, the secretary, or his or her representatives. Any worker claiming benefits in any proceeding before a referee or the commission may represent himself or herself or may be represented by counsel or other agent duly authorized by such worker and shall be afforded the opportunity to participate in the proceeding without restriction; but no counsel or agent shall either charge or receive for such service more than an amount approved by the commission.
    1. Any employer in any proceeding before a referee or the commission may represent himself or may be represented by counsel or other agent duly authorized by such employer; and (3) (a) Any employer in any proceeding before a referee or the commission may represent himself or may be represented by counsel or other agent duly authorized by such employer; and
    2. Any person appearing in any proceeding before a referee or the commission who is an officer of, or who regularly performs in a managerial capacity for, a corporation or partnership which is a party to the proceeding in which the appearance is made shall be permitted to represent such corporation or partnership and shall be afforded the opportunity to participate in the proceeding without restriction.
  3. No assignment, pledge, or encumbrance of any right to benefits due or payable under this chapter shall be valid; and such rights to benefits shall be exempt from levy, execution, attachment, or any other remedy for the collection of debt. Benefits received by any worker, as long as they are not mingled with other funds of the recipient, shall be exempt from any remedy for the collection of all debts except debts incurred for necessaries furnished to such worker or his spouse or dependents during the time such worker was unemployed. No waiver of any exemption provided for in this subsection shall be valid.
  4. The provisions of this section shall not be applicable to child support deductions made in accordance with KRS 341.392 and withholding for federal and state income tax in accordance with KRS 341.395 .

History. 4748g-12: amend. Acts 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, § 107(21); 1982, ch. 67, § 10, effective July 15, 1982; 1984, ch. 12, § 1, effective July 13, 1984; 1986, ch. 26, § 7, effective July 15, 1986; 1992, ch. 133, § 5, effective July 14, 1992; 1996, ch. 266, § 16, effective July 15, 1996; 1996, ch. 271, § 21, effective July 15, 1996; 1998, ch. 167, § 7, effective July 15, 1998; 2006, ch. 211, § 153, effective July 12, 2006; 2019 ch. 146, § 66, effective June 27, 2019.

Legislative Research Commission Note.

The word “Except” was deleted from the beginning of the sentence in subsection (1) of this statute that begins “In cases involving awards . . . . . ” by 1996 Ky. Acts ch. 266, sec. 16. This deletion was inadvertently omitted in the merger of the amendments to this statute by 1996 Ky. Acts chs. 266 and 271, and the text of the statute has been corrected to reflect this deletion.

NOTES TO DECISIONS

  1. Retirement.
  2. Deferment of Vacation Pay.
  3. Polygraph Examination.
  4. Constitutionality.
1. Retirement.

When the employee personally, without compulsion or coercion, elected to become covered by the retirement plan of his employer and did not exercise option to work past age of 65, he personally chose retirement rather than employment which is tantamount to voluntary quitting. Kentucky Unemployment Ins. Com. v. Kroehler Mfg. Co., 352 S.W.2d 212, 1961 Ky. LEXIS 203 ( Ky. 1961 ).

2. Deferment of Vacation Pay.

Where the employee would otherwise be eligible for unemployment benefits, provision in the union contract for deferment of vacation pay until eligibility has accrued does not violate this section’s prohibition against agreements to waive, release or commute rights to unemployment benefits. Kentucky Unemployment Ins. Com. v. General Electric Co., 473 S.W.2d 808, 1971 Ky. LEXIS 160 ( Ky. 1971 ).

3. Polygraph Examination.

Since an employer’s requirement that employes submit to polygraph examination is an unreasonable rule for such examinations are unreliable and the results are inadmissible to both civil and criminal actions, it was unreasonable for an employer to require its employees to submit to such an unreliable test and employee’s refusal to take such examination could not be used to show misconduct in order to deny unemployment compensation benefits. Douthitt v. Kentucky Unemployment Ins. Com., 676 S.W.2d 472, 1984 Ky. App. LEXIS 494 (Ky. Ct. App. 1984).

4. Constitutionality.

Trial court’s affirmance of a ruling by the Kentucky Unemployment Insurance Commission (Commission) denying an employee’s application for benefits was reversed because (1) a non-attorney represented an employer before the Commission, and, (2) to the extent a statute allowed such representation, the statute violated the Kentucky Constitution’s separation-of-powers provisions, as the unauthorized practice of law was implicated. Nichols v. Ky. Unemployment Ins. Comm'n, 2019 Ky. App. LEXIS 73 (Ky. Ct. App. Apr. 26, 2019).

Cited:

Kentucky Unemployment Ins. Com. v. Reynolds Metals Co., 360 S.W.2d 746, 1962 Ky. LEXIS 224 ( Ky. 1962 ); Kentucky Unemployment Ins. Com. v. American Nat’l Bank & Trust Co., 367 S.W.2d 260, 1963 Ky. LEXIS 18 ( Ky. 1963 ).

341.480. Reciprocal arrangements. [Repealed.]

Compiler’s Notes.

This section (4748g-13) was repealed by Acts 1950, ch. 206, § 1.

Funds and Accounts

341.490. Unemployment insurance fund.

  1. There shall be a special fund known as the unemployment insurance fund which shall be administered separate and apart from all public money or funds of this state. This fund shall consist of:
    1. All contributions, payments in lieu of contributions, and money collected under this chapter, except any surcharge; interest collected on a delinquent surcharge; money received from any source related to payment of interest on advances under Title XII of the Social Security Act; fines, penalties, and interest on delinquent contributions collected under KRS 341.300 ; and service capacity upgrade payments collected under KRS 341.243 ;
    2. Interest earned upon any money in the fund;
    3. Any property or securities acquired through use of money belonging to the fund;
    4. All earnings of such property or securities;
    5. All money received from the federal unemployment account in the unemployment trust fund in accordance with Title XII of the Social Security Act as amended;
    6. All money credited to the account of this state in the unemployment trust fund in accordance with Section 903 of the Social Security Act as amended; and
    7. All money received from the federal government as reimbursement, pursuant to Section 204 of the Federal-State Extended Unemployment Compensation Act of 1970.
  2. All moneys in the fund shall be commingled and undivided.
  3. Subject to the provisions of this chapter, the secretary may have full power, authority, and jurisdiction over the fund, including all money and property or securities belonging thereto, and may perform any act necessary or convenient in the administration thereof consistent with this chapter.

History. 4748g-14: amend. Acts 1948, ch. 216, § 19; 1950, ch. 206, § 1; 1956 (4th Ex. Sess.), ch. 5, § 1; 1958, ch. 4, § 11; 1972, ch. 21, § 30; 1974, ch. 74, Art. VI, § 107(21); 1980, ch. 188, § 273, effective July 15, 1980; 1984, ch. 326, § 5, effective July 13, 1984; 1996, ch. 266, § 17, effective July 15, 1996; 1998, ch. 167, § 8, effective July 15, 1998; 2012, ch. 52, § 3, effective April 11, 2012.

Compiler’s Notes.

Title XII of the Social Security Act, referred to in subsection (1)(e), is compiled as 42 USCS § 1321 et seq. Section 903 of the Social Security Act, referred to in subsection (1)(f), is compiled as 42 USCS § 1103. Section 204 of the Federal-State Extended Unemployment Compensation Act of 1970, referred to in subsection (1)(g), is compiled as a note following 26 USCS § 3304.

NOTES TO DECISIONS

Cited:

Barnes v. Stearns Coal & Lumber Co., 295 Ky. 812 , 175 S.W.2d 498, 1943 Ky. LEXIS 339 ( Ky. 1943 ); Lexington Cemetery Co. v. Commonwealth, 297 Ky. 851 , 181 S.W.2d 699, 1944 Ky. LEXIS 839 ( Ky. 1944 ).

Opinions of Attorney General.

The Commonwealth may legally incur the obligation to pay the required interest on Title XII advancements to the state’s unemployment insurance fund since such interest can be paid from funds in the “Penalty and Interest Account,” a nonappropriations dollars account. However, should the “P and I account” become insufficient there would be no Const., §§ 49 and 50 problems created since the mere possibility of a liability against general revenues does not offend the constitution. OAG 82-541 .

341.500. Accounts and deposits.

  1. The State Treasurer shall be the treasurer and custodian of the fund. He shall administer the fund in accordance with the direction of the secretary and shall pay all vouchers approved by the Finance and Administration Cabinet and drawn upon the fund in accordance with regulations prescribed by the secretary. He shall maintain within the fund three (3) separate accounts: a clearing account; an unemployment trust fund account; and a benefit account.
  2. All money payable to the fund, upon receipt thereof by the cabinet, shall be forwarded to the Treasurer, who shall immediately deposit it in the clearing account. Refunds payable under KRS 341.330 may be paid from the clearing account upon warrants issued by the Treasurer under the direction of the secretary. After clearance thereof, all other money in the clearing account shall be immediately deposited with the secretary of the federal treasury to the credit of the account of this state in the unemployment trust fund, established and maintained under Section 904 of the Social Security Act (49 Stat. 620), as amended, any other law to the contrary notwithstanding.
  3. The benefit account shall consist of all money requisitioned from the state’s account in the unemployment trust fund. Except as otherwise provided in this chapter, money in the clearing and benefit accounts may be deposited by the Treasurer, under the direction of the secretary, in any bank or public depository in which general funds of the state may be deposited, but no public deposit insurance charge or premium shall be paid out of the fund.

History. 4748g-14: amend Acts 1946, ch. 27, § 22; 1950, ch. 206, § 1; 1974, ch. 74, Arts. II, § 9(1) and VI, § 107(23), (31).

Compiler’s Notes.

Section 904 of the Social Security Act, referred to in subsection (2), is compiled as 42 USCS, § 1104.

NOTES TO DECISIONS

Cited:

Barnes v. Stearns Coal & Lumber Co., 295 Ky. 812 , 175 S.W.2d 498, 1943 Ky. LEXIS 339 ( Ky. 1943 ); Barnes v. Levy Bros, Inc., 295 Ky. 794 , 175 S.W.2d 495, 1943 Ky. LEXIS 338 ( Ky. 1943 ).

341.510. Withdrawals from trust fund — Governor may request transfer of funds from federal unemployment trust fund.

  1. Except as provided in subsection (2) of this section and except the money as has been credited to the account of this state in the unemployment trust fund under the provisions of Section 903 of the Social Security Act as amended, and appropriated by legislative action authorized thereunder for administrative expenses, money shall be requisitioned from the state’s account in the unemployment trust fund solely for the payment of benefits and in accordance with regulations prescribed by the secretary. The secretary, through the State Treasurer acting as his fiscal agent, shall from time to time requisition from the unemployment trust fund the amounts not exceeding the amounts standing to this state’s accounts therein, as he considers necessary for the payment of benefits for a reasonable future period.
  2. The Governor may, at any time, pursuant to Section 1202 of the Social Security Act, request that funds be transferred from this state’s account in the unemployment trust fund for repayment of part or all of that balance of advances made to the state under Section 1201 of the Social Security Act.
  3. Upon receipt thereof the Treasurer shall deposit the money in the benefit account and shall issue his vouchers for the payment of benefits solely from the benefit account. Expenditures of the money in the benefit account shall not be subject to any provisions of law requiring specific appropriations or other formal release by state officers of money in their custody. All vouchers issued by the Treasurer for the payment of benefits and refunds shall bear the signature of the Treasurer and the approval in writing of the secretary of the Finance and Administration Cabinet.
  4. Any balance of money requisitioned from the unemployment trust fund that remains unclaimed or unpaid in the benefit account after the expiration of the period for which the sums were requisitioned shall either be deducted from estimates for, and may be utilized for the payment of benefits during succeeding periods, or, in the discretion of the secretary, shall be redeposited with the secretary of the federal Treasury to the credit of this state’s account in the unemployment trust fund, as provided in KRS 341.500 .
  5. Notwithstanding the provisions of subsection (1) of this section to the contrary, money credited to the state under Section 903 of the Social Security Act, as amended with respect to federal fiscal years 1999, 2000, and 2001, shall be used solely for the administration of the unemployment insurance program and not subject to appropriation by the General Assembly.

History. 4748g-14: amend. Acts 1944, ch. 27, § 1; 1950, ch. 206, § 1; 1956 (4th Ex. Sess.), ch. 5, § 2; 1974, ch. 74, Arts. II, § 9(2) and VI, § 107(31); 1978, ch. 389, § 28, effective July 1, 1978; 2000, ch. 547, § 12, effective July 14, 2000.

Compiler’s Notes.

Sections 903, 1201, and 1202 of the Social Security Act referred to in this section, are compiled as 42 USCS §§ 1103, 1321 and 1322, respectively.

341.520. Disposition of funds upon discontinuance of trust fund.

KRS 341.490 , 341.500 and 341.510 , to the extent that they relate to the unemployment trust fund, shall be operative only so long as that fund continues to exist and so long as the secretary of the federal treasury continues to maintain for this state a separate book account of all funds deposited therein by this state for benefit purposes, together with this state’s proportionate share of the earnings of that fund, from which no other state is permitted to make withdrawals. If the unemployment trust fund ceases to exist, or such separate book account is no longer maintained, all money, property or securities therein, belonging to the unemployment insurance fund of this state shall be transferred to the treasurer of the unemployment insurance fund, who shall hold, invest, transfer, sell, deposit, and release such money, property, or securities in a manner approved by the secretary and the Finance and Administration Cabinet, in accordance with this chapter. Such money shall be invested in bonds or other interest-bearing obligations of the United States of America. Investments shall at all times be so made that all the assets of the fund shall always be readily convertible into cash when needed for the payment of benefits. The State Treasurer shall dispose of securities or other property belonging to the unemployment insurance fund only under the direction of the secretary and the secretary of the Finance and Administration Cabinet.

History. 4748g-14: amend. Acts 1950, ch. 206, § 1; 1974, ch. 74, Arts. II, § 9(1), (2) and VI, § 107(21).

341.530. Employer reserve accounts — Reimbursing employer accounts — Relief for improper benefit payments — Charging of benefits — Voluntary payments.

  1. The Office of Unemployment Insurance, Department of Workforce Investment, shall maintain a reserve account for each subject employer making contributions to the fund and a reimbursing employer account for each subject employer making payment in lieu of contributions, and shall, except as provided in KRS 341.590 , credit to such account the total amount of all contributions or benefit reimbursement paid by the employer on his own behalf. Nothing in this section or elsewhere in this chapter shall be construed to grant any employer or individual who is or was in his employ prior claims or rights to the amounts paid by him into the fund.
  2. Except as provided in subsection (3) of this section, all regular benefits paid to an eligible worker in accordance with KRS 341.380 plus the extended benefits paid in accordance with KRS 341.700 to 341.740 , subject to the provisions of paragraphs (a) and (b) of this subsection, shall be charged against the reserve account or reimbursing employer account of his most recent employer. No employer shall be deemed to be the most recent employer unless the eligible worker to whom benefits are payable shall have worked for such employer in each of ten (10) weeks whether or not consecutive back to the beginning of the worker’s base period.
    1. Subject employers, which are not governmental entities as defined in KRS 341.069 , shall be charged one-half (1/2) of the extended benefits paid in accordance with KRS 341.700 to 341.740 ; and
    2. Subject employers which are governmental entities, as defined in KRS 341.069 , shall be charged for all extended benefits paid in accordance with KRS 341.700 to 341.740 for compensable weeks occurring on or after January 1, 1979, and for one-half (1/2) of the extended benefits paid for compensable weeks occurring prior to such date.
  3. Notwithstanding the provisions of subsection (2) of this section, benefits paid to an eligible worker and chargeable to a contributing employer’s reserve account under such subsection shall be charged against the pooled account if such worker was discharged by such employer for misconduct connected with his most recent work for such employer, voluntarily left his most recent work with such employer without good cause attributable to the employment, or the employer has continued to provide part-time employment and wages, without interruption, to the same extent that was provided from the date of hire, and the employer within a reasonable time, as prescribed by regulation of the secretary, notifies the office, in writing, of the alleged voluntary quitting, discharge for misconduct or continuing part-time employment; provided, however, that no employer making payments to the fund in lieu of contributions shall be relieved of charges by reason of this subsection.
  4. Notwithstanding the provisions of subsection (3) of this section, no contributing employer’s reserve account shall be relieved of any charges for benefits relating to an improper benefit payment to a worker established after October 21, 2013, if:
    1. The improper benefit payment was made because the employer, or an agent of the employer, was at fault for failing to respond timely or adequately to the request of the secretary for information relating to a claim for benefits; and
    2. The employer, or an agent of the employer, has a pattern of failing to respond timely or adequately to requests under paragraph (a) of this subsection. For purposes of this paragraph, a “pattern of failing” means at least six (6) failures occur in a calendar year or the failure to respond to two percent (2%) of such requests in a calendar year, whichever is greater.
  5. Any determination under subsection (4) of this section shall be transmitted to the last known physical or electronic address provided by the employer and may be appealed in accordance with the provisions of KRS 341.420(2).
  6. Each subject employer’s reserve account or reimbursing account shall, unless terminated as of the computation date (as defined in subsection (5) of KRS 341.270 ), be charged with all benefits paid to eligible workers which are chargeable to such reserve account or reimbursing account under subsection (2) of this section. A subject employer’s reserve account or reimbursing account shall be deemed to be terminated if he has ceased to be subject to this chapter, and his account has been closed and any balance remaining therein has been transferred to the fund’s pooled account or to a successor’s account as provided in KRS 341.540 or has been refunded if the employer is a reimbursing employer.
  7. Notwithstanding subsection (1) of this section, two (2) or more nonprofit Internal Revenue Code sec. 501(c)(3) organizations may jointly request the secretary to establish a group reserve account or reimbursing account for such nonprofit organizations. Two (2) or more governmental entities may jointly request the secretary to establish a group reserve account or reimbursing account, and once established, such account shall remain in effect at least two (2) calendar years and thereafter until either dissolved at the discretion of the secretary or upon filing application for dissolution by the group members. Each member of a group shall be jointly and severally liable for all payments due under this chapter from each or all of such group members. The secretary shall prescribe such procedures as he deems necessary for the establishment, maintenance, and dissolution of a group reserve account or reimbursing account.
  8. Any subject contributing employer may at any time on or before December 31, 2011, make voluntary payments to the fund, additional to the contributions required under KRS 341.260 and 341.270 . Effective January 1, 2012, any subject contributing employer with a negative reserve account balance may make voluntary payments to the fund every other calendar year, in addition to the contributions required under KRS 341.260 and 341.270 . Notwithstanding any other provision of this chapter, contributions paid on or before the computation date and voluntary payments made within twenty (20) days following the mailing of notices of new rates shall be credited to an employer’s reserve account as of the computation date, provided no voluntary payments shall be used in computing an employer’s rate unless the payment is made prior to the expiration of one hundred and twenty (120) days after the beginning of the year for which the rate is effective. Voluntary payments by any employer shall not exceed any negative balance they may have in their reserve account as of the computation date. Any employer who is delinquent in the payment of contributions, penalties, or interest as of the computation date shall be entitled to make voluntary payments only after the amount of the delinquency is paid in full.

History. 4748g-15: amend. Acts 1942, ch. 19, §§ 8, 17; 1944, ch. 37, § 2; 1948, ch. 216, § 21; 1950, ch. 206, § 1; 1958, ch. 4, § 12; 1964, ch. 168, § 4; 1972, ch. 21, § 31; 1974, ch. 74, Art. VI, § 107(23), (31); 1978, ch. 389, § 29, effective July 1, 1978; 1982, ch. 261, § 7, effective July 15, 1982; 1984, ch. 1, § 3, effective July 13, 1984; 1984, ch. 326, § 6, effective July 13, 1984; 1992, ch. 38, § 1, effective July 14, 1992; 1996, ch. 266, § 18, effective July 15, 1996; 1998, ch. 167, § 9, effective July 15, 1998; 2006, ch. 211, § 154, effective July 12, 2006; 2010 (1st Ex. Sess.), ch. 5, § 10, effective August 28, 2010; 2013, ch. 45, § 2, effective June 25, 2013; 2019 ch. 146, § 67, effective June 27, 2019.

Compiler’s Notes.

Section 501 of the Internal Revenue Code, referred to in this section, is compiled as 26 USCS § 501.

NOTES TO DECISIONS

  1. Construction.
  2. Termination of Employment.
  3. — Voluntary.
  4. — Involuntary.
  5. Good Cause Attributable to Employment.
  6. Misconduct.
  7. Retirement Plan.
  8. Temporary Employment.
  9. Voluntary Contribution.
  10. Right to Refund.
  11. Move by Employer.
1. Construction.

This section, as a taxing statute, should be strictly construed. Broadway & Fourth Ave. Realty Co. v. Allen, 365 S.W.2d 302, 1962 Ky. LEXIS 285 ( Ky. 1962 ).

The proviso in subsection (3) of this section that no reimbursing employer shall be relieved of charges by reason of subsection (3) can only be sensibly read as a part of that subsection, and may not be used to alter the language of the other subsections of the statute. Under this section, a reimbursing employer is not relieved of the direct financial responsibility to the division just because the former employee voluntarily quit, was discharged for misconduct, or continued employment; however, this subsection does not apply to situations where benefits were paid to a former employee of a reimbursing employer due to departmental error. Kentucky Unemployment Ins. Com. v. Kaco Unemployment Ins. Fund, Inc., 793 S.W.2d 845, 1990 Ky. App. LEXIS 91 (Ky. Ct. App. 1990).

2. Termination of Employment.

Where unemployment results from the discontinuance of operations by the employer, the reason for the discontinuance has no bearing at all on the right of the worker to draw benefits, even when the discontinuance is caused by a public law. Churchill Downs, Inc. v. Kentucky Unemployment Ins. Com., 454 S.W.2d 347, 1970 Ky. LEXIS 274 ( Ky. 1970 ).

3. — Voluntary.

If after a period of failure to provide continuing work, the employer again offers continuing work and the employee waits until after the offer has been made before terminating his employment and seeking unemployment benefits, there is no reason to impose a charge on the employer’s reserve account. Unemployment Ins. Com. v. Cochran Foil Co., 331 S.W.2d 903, 1960 Ky. LEXIS 139 ( Ky. 1960 ).

Where the track closed at the end of a meet, any agreement that might have been made by pari-mutuel workers at the track, whether or not made through their union as “agent,” to leave work at the close of a meet was not an exercise of a choice of alternatives so as to be classifiable as a voluntary election to leave the work. Churchill Downs, Inc. v. Kentucky Unemployment Ins. Com., 454 S.W.2d 347, 1970 Ky. LEXIS 274 ( Ky. 1970 ).

4. — Involuntary.

Where members of International Labor union went on strike at Ford plant at Dearborn, Michigan, thereby causing the Ford plant at Louisville to close due to lack of parts to assemble, employees of Louisville plant were not out on strike and therefore unemployment compensation payments were properly charged to Ford Company’s reserve account rather than being charged to Commission’s pooled account. Ford Motor Co. v. Kentucky Unemployment Compensation Com., 243 S.W.2d 657, 1951 Ky. LEXIS 1148 ( Ky. 1951 ).

5. Good Cause Attributable to Employment.

The quitting of a job by a woman for the purpose of joining her husband at a distant place is not “good cause attributable to the employment” within the meaning of this section. Unemployment Ins. Com. v. Cochran Foil Co., 331 S.W.2d 903, 1960 Ky. LEXIS 139 ( Ky. 1960 ).

Where an employee took time off to nurse her sick husband and the cause of her leaving work was therefore not “attributable to the employment,” the ultimate burden of her unemployment compensation payments shifted to the pooled account. Cantrell v. Kentucky Unemployment Ins. Com., 450 S.W.2d 235, 1970 Ky. LEXIS 431 ( Ky. 1970 ).

6. Misconduct.

Excessive absenteeism due to illness coupled with failure to give the employer notice thereof constitutes misconduct and benefits paid to employee discharged for same are not chargeable to the employer’s reserve account. Brown Hotel Co. v. White, 365 S.W.2d 306, 1962 Ky. LEXIS 286 ( Ky. 1962 ).

Employee’s continued refusal to perform a simple task in obedience to explicit and direct orders of his supervisor constitutes misconduct and bars the charging of the employer’s reserve account with the benefits paid. Brown Hotel Co. v. Roberts, 365 S.W.2d 308, 1962 Ky. LEXIS 287 ( Ky. 1962 ).

Persistent or chronic absenteeism without notice or excuse in the face of continued warnings from the employer constitutes such misconduct as requires a denial of benefits or of the charging of benefits paid to an employer’s reserve account. Broadway & Fourth Ave. Realty Co. v. Crabtree, 365 S.W.2d 313, 1962 Ky. LEXIS 290 ( Ky. 1962 ).

7. Retirement Plan.

When the employee personally, without compulsion or coercion, elected to become covered by the retirement plan of his employer and did not exercise option to work past age 65, he personally chose retirement rather than employment which is tantamount to voluntary quitting. Kentucky Unemployment Ins. Com. v. Kroehler Mfg. Co., 352 S.W.2d 212, 1961 Ky. LEXIS 203 ( Ky. 1961 ).

8. Temporary Employment.

An employee who accepts a job which he knows in advance to be temporary does not voluntarily leave when the job ceases to exist. Kentucky Unemployment Ins. Com. v. American Nat'l Bank & Trust Co., 367 S.W.2d 260, 1963 Ky. LEXIS 18 ( Ky. 1963 ).

9. Voluntary Contribution.

Where, seven (7) days after adopting resolution to end corporation’s life within 35 days, a corporation, under the provisions of subsection (5) of this section, made a voluntary contribution to build up its reserve account, the voluntary contribution, not being a tax which could have been imposed upon the corporation and for which it could have been held liable, was not, within the meaning of the income tax law, deductible as tax paid nor as an ordinary or necessary business expense in liquidating the corporation or in carrying on any trade or business engaged in by the corporation. Gossmann v. Glenn, 91 F. Supp. 1005, 1950 U.S. Dist. LEXIS 2873 (W.D. Ky. 1950 ), aff'd, 191 F.2d 856, 1951 U.S. App. LEXIS 3281 (6th Cir. Ky. 1951 ).

10. Right to Refund.

Where employer’s voluntary contribution was accompanied by a letter stating it was made to bring his reserve account to a status to reduce his rate to zero for the succeeding year, the fact that the Commission rules stated such voluntary contributions were not subject to refund did not preclude employer’s right to refund on demand under KRS 341.330 . Barnes v. Levy Bros, Inc., 295 Ky. 794 , 175 S.W.2d 495, 1943 Ky. LEXIS 338 ( Ky. 1943 ). See Barnes v. Stearns Coal & Lumber Co., 295 Ky. 812 , 175 S.W.2d 498, 1943 Ky. LEXIS 339 ( Ky. 1943 ).

11. Move by Employer.

If the commission finds that employer’s move renders claimant’s employment unsuitable, his quitting would thereby be with good cause attributable to employment; accordingly, the employer’s reserve account should appropriately be charged pursuant to subsection (2) of this section. Brock v. Kentucky Unemployment Ins. Com., 693 S.W.2d 69, 1985 Ky. App. LEXIS 619 (Ky. Ct. App. 1985).

Cited:

Stearns Coal & Lumber Co. v. Unemployment Compensation Com., 285 Ky. 249 , 147 S.W.2d 382, 1941 Ky. LEXIS 360 ( Ky. 1941 ); Oppenheimer v. Commonwealth, 305 Ky. 147 , 202 S.W.2d 373, 1947 Ky. LEXIS 707 ( Ky. 1947 ); Kentucky Unemployment Ins. Com. v. Reynolds Metals Co., 360 S.W.2d 746, 1962 Ky. LEXIS 224 ( Ky. 1962 ); McFadden v. Kentucky Unemployment Ins. Com., 588 S.W.2d 711, 1978 Ky. App. LEXIS 683 (Ky. Ct. App. 1978); J. T. Nelson Co. v. Comstock, 636 S.W.2d 896, 1982 Ky. App. LEXIS 231 (Ky. Ct. App. 1982); Bowman v. Stumbo, 735 F.2d 192, 1984 U.S. App. LEXIS 22159 (6th Cir. 1984); Shamrock Coal Co. v. Taylor, 697 S.W.2d 952, 1985 Ky. App. LEXIS 660 (Ky. Ct. App. 1985).

341.540. Reserve accounts of successive employing units — Resources and liabilities — Contribution rate — Penalties.

  1. As used in this section, unless the context clearly requires otherwise:
    1. “Substantially common” or “substantially the same” means that there is identifiable or demonstrative commonality or similarity of ownership, familial relationships, principals or corporate officers, day-to-day operations, assets and liabilities, and stated business;
    2. “Trade” or “business” includes but is not limited to a commercial enterprise or establishment; any entity engaged in the supplying, production, or manufacturing of goods, commodities, or services; any entity engaged in commerce, sale for profit, or the providing of goods, personnel, or services;
    3. “Knowingly” means having actual knowledge of, or acting with deliberate ignorance or disregard for, the prohibition involved;
    4. “Violates” or “attempts to violate” includes, but is not limited to, intended evasion, misrepresentation, or willful nondisclosure; and
    5. “Person” has the same meaning as in Section 7701(a)(1) of the Internal Revenue Code.
    1. For the purpose of this chapter, if a subject employer transfers all or part of its trade or business, the acquiring employing unit shall be deemed a successor if the transfer is in accordance with administrative regulations promulgated by the secretary, or if there is substantially common ownership, management, or control of the subject employer and employing unit. If an employing unit is deemed a successor, the transferring employing unit shall be deemed a predecessor. (2) (a) For the purpose of this chapter, if a subject employer transfers all or part of its trade or business, the acquiring employing unit shall be deemed a successor if the transfer is in accordance with administrative regulations promulgated by the secretary, or if there is substantially common ownership, management, or control of the subject employer and employing unit. If an employing unit is deemed a successor, the transferring employing unit shall be deemed a predecessor.
    2. For the purpose of this chapter, if a nonsubject employer acquires all or part of the trade or business of a subject employer, the nonsubject employer shall file an application with the Office of Unemployment Insurance, Department of Workforce Investment, to establish an unemployment reserve account within forty-five (45) days of employing personnel. The application will be considered and processed in accordance with administrative regulations promulgated by the secretary and shall require information necessary to determine whether the nonsubject employer is a successor of the subject employer and to establish an initial unemployment contribution rate for the employer. Factors to be considered in the determination of successorship and the fixing of the initial rate shall include but not be limited to the nonsubject employer’s prior unemployment claims history, benefit charges, historical rate charges, and payment penalties assessed in the previous five (5) years, in addition to the factors set forth in subsection (6)(b) of this section. After consideration of these factors, and others that the applicant may submit in justification of an initial rate determination, the secretary shall set an appropriate contribution rate. Any determinations of initial unemployment contribution rates made pursuant to this subsection shall not be effective prior to January 1, 2018.
    1. Notwithstanding subsection (2)(b) of this section, any successor to the trade or business of a subject employer shall assume the resources and liabilities of the predecessor’s reserve account, including interest, and shall continue the payment of all contributions and interest due under this chapter, except that the successor shall not be required to assume the liability of any delinquent contributions and interest of a predecessor or predecessors unless the cabinet notifies the successor of the delinquency within six (6) months after the department has notice of the succession; and (3) (a) Notwithstanding subsection (2)(b) of this section, any successor to the trade or business of a subject employer shall assume the resources and liabilities of the predecessor’s reserve account, including interest, and shall continue the payment of all contributions and interest due under this chapter, except that the successor shall not be required to assume the liability of any delinquent contributions and interest of a predecessor or predecessors unless the cabinet notifies the successor of the delinquency within six (6) months after the department has notice of the succession; and
    2. Any nonsubject employer that is deemed a successor in whole or part shall be allowed to make a one (1) time voluntary payment to pay off or reduce the negative reserve assumed from the predecessor. This payment shall be made within sixty (60) days of receipt of the first notice of a negative predecessor reserve account. This one (1) time voluntary payment cannot exceed the amount of negative reserve assumed by the successor.
  2. The liability for delinquent contributions and interest imposed upon the successor by subsection (3) of this section shall be secondary to the liability of the predecessor or predecessors, and if the delinquency has been reduced to judgment, the order of execution on the judgment shall be as follows:
    1. Against the assets, both real and personal, of the predecessor or predecessors;
    2. Against the assets, both real and personal, of the business acquired; and
    3. Against the assets, both real and personal, of the successor or acquirer.
    1. Notwithstanding the provisions of subsection (3) of this section, any successor to a portion of the trade or business of a subject employer, who is, or by reason of the transfer becomes, a subject employer, shall assume the resources and liabilities of the predecessor’s reserve account in proportion to the percentage of the payroll or employees assignable to the transferred portion. In calculating the transferred portion, the secretary shall utilize the last four (4) calendar quarters preceding the date of transfer for workers employed by the successor subsequent to that date. The taxable payroll, benefit charges and the potential benefit charges shall be assumed by the successors in a like proportion. (5) (a) Notwithstanding the provisions of subsection (3) of this section, any successor to a portion of the trade or business of a subject employer, who is, or by reason of the transfer becomes, a subject employer, shall assume the resources and liabilities of the predecessor’s reserve account in proportion to the percentage of the payroll or employees assignable to the transferred portion. In calculating the transferred portion, the secretary shall utilize the last four (4) calendar quarters preceding the date of transfer for workers employed by the successor subsequent to that date. The taxable payroll, benefit charges and the potential benefit charges shall be assumed by the successors in a like proportion.
    2. Notwithstanding the provisions of paragraph (a) of this subsection, if any employing unit succeeds to a portion of the trade or business of another employing unit; becomes, by reason of that succession, a subject employer with substantially the same ownership, management, or control as the predecessor employing unit; and lays off or terminates more than one-half (1/2) of the original employees transferred within six (6) months of the date of transfer; then the succession and creation of the new employing unit shall be voided, and the benefits attributable to the lay-offs or terminations shall be charged to the reserve account of the original employing unit.
    1. The contribution rate of a successor in whole or in part, which was a subject employer prior to succession, shall not be affected by the transfer of the reserve account for the remainder of the rate year in which succession occurred; except that the rate of the successor shall be recalculated and made effective upon the first day of the calendar quarter immediately following the date of the transfer if there is substantially common ownership, management, or control of the predecessor and successor. (6) (a) The contribution rate of a successor in whole or in part, which was a subject employer prior to succession, shall not be affected by the transfer of the reserve account for the remainder of the rate year in which succession occurred; except that the rate of the successor shall be recalculated and made effective upon the first day of the calendar quarter immediately following the date of the transfer if there is substantially common ownership, management, or control of the predecessor and successor.
    2. The contribution rate of a successor in whole or in part, which was not a subject employer prior to succession, shall be determined by a review of the application required by subsection (2)(b) of this section, except if the secretary finds, after a thorough investigation based on the use of objective factors, including but not limited to:
      1. The cost of acquiring the business;
      2. How long the original business enterprise was continued; and
      3. Whether a substantial number of new employees were hired for performance of duties unrelated to the business activity prior to acquisition;
    3. The contribution rate for a successor which becomes a subject employer through the simultaneous transfer, either in whole or in part, of two (2) or more predecessor reserve accounts shall be the rate determined in accordance with the provisions of KRS 341.270 , by combining the reserve accounts succeeded to as of the computation date for determining rates for the calendar year in which succession occurred.
    4. The contribution rate of a successor which succeeds, either in whole or in part, to a predecessor’s reserve account after a computation date, but prior to the beginning of the calendar year immediately following that computation date, shall be the rate determined in accordance with KRS 341.270 , by effecting the transfer of the reserve account as of the computation date immediately preceding the date of succession.
  3. Notwithstanding KRS 341.270 , the contribution rate for an employing unit that knowingly violates or attempts to violate the provisions of this section or any other provision of the chapter related to determining the assignment of a contribution rate shall be the highest rate assignable under this chapter for the calendar year during which the violation or attempted violation occurred and the three (3) calendar years immediately following that year. If that employer’s rate is already at the highest assignable rate, or if the amount of increase in the employer’s rate would be less than an additional two percent (2%) for that year, then a penalty rate of contributions of an additional two percent (2%) of taxable wages shall be imposed for each year.
  4. In addition to the penalties prescribed in subsection (7) of this section and KRS 341.990 (9), any person who knowingly violates this section shall be subject to the penalties stipulated under KRS 341.990 .
    1. The secretary shall establish procedures to identify the transfer of a business for purposes of this section. (9) (a) The secretary shall establish procedures to identify the transfer of a business for purposes of this section.
    2. The secretary shall have the authority and discretion to set an initial contribution rate upon the providing of justification by a subject employer and consideration of relevant factors, including but not limited to the factors set forth in subsections (2) and (6)(a) of this section.

that the succession was solely for the purpose of obtaining a rate lower than that prescribed in KRS 341.270(1) and 341.272 for a new employing unit, then the unemployment experience of the predecessor shall not be transferred, the rate for a new employing unit shall be assigned, and the employing unit shall be otherwise deemed a successor for the purpose of KRS 341.070(7) and subsection (3) of this section.

HISTORY: 4748g-15: amend. Acts 1942, ch. 19, §§ 7, 16; 1950, ch. 206, § 1; 1952, ch. 154, § 17; 1964, ch. 168, § 5; 1972, ch. 21, § 32; 1974, ch. 74, Art. VI, § 107(23), (31); 1978, ch. 389, § 30, effective July 1, 1978; 1988, ch. 106, § 11, effective July 15, 1988; 1998, ch. 167, § 10, effective July 15, 1998; 2000, ch. 32, § 1, effective July 14, 2000; 2005, ch. 12, § 1, effective June 20, 2005; 2017 ch. 133, § 3, effective June 29, 2017; 2018 ch. 134, § 5, effective July 14, 2018; 2019 ch. 146, § 68, effective June 27, 2019.

NOTES TO DECISIONS

  1. In General.
  2. Resources.
  3. Purchaser’s Liability.
  4. Part of Contract.
  5. Buyer’s Liability for Tax.
1. In General.

A finding that a corporation was a successor employer was error under circumstances in which the record was devoid of any evidence of a “connection, negotiation, or transaction” between the corporation and the predecessor company; the corporation’s president testified that his company had no connection with the predecessor and no conversation or negotiations ever occurred between them, nor was there any agreement, assignment of rights or liabilities, or transfer of assets between the two companies. Competitive Auto Ramp Servs. v. Ky. Unemployment Ins. Comm'n, 222 S.W.3d 249, 2007 Ky. App. LEXIS 114 (Ky. Ct. App. 2007).

Kentucky Unemployment Insurance Commission did not err in finding that the employer was a successor employer to the company, KRS 341.070(7) and 341.540(1), as there was substantial evidence that the company was a going concern when acquired and the employer continued to operate the company as the same type of business, 787 Ky. Admin. Regs. 1:300, § 1. Trillium Indus. v. Ky. Unemployment Ins. Comm'n, 314 S.W.3d 751, 2010 Ky. App. LEXIS 110 (Ky. Ct. App. 2010).

2. Resources.

The word “resources” means what has been credited and what is due it. Oppenheimer v. Commonwealth, 305 Ky. 147 , 202 S.W.2d 373, 1947 Ky. LEXIS 707 ( Ky. 1947 ).

3. Purchaser’s Liability.

The transferee of a subject employer’s business or his successor in interest, ipso facto takes over the resources and liabilities of the transferor’s reserve account. Oppenheimer v. Commonwealth, 305 Ky. 147 , 202 S.W.2d 373, 1947 Ky. LEXIS 707 ( Ky. 1947 ).

Upon sale of restaurant company which was subject to the unemployment compensation law, purchaser to whom all assets were transferred and who continued to operate business in same place with substantially same employees became a “subject employer” under the law. Oppenheimer v. Commonwealth, 305 Ky. 147 , 202 S.W.2d 373, 1947 Ky. LEXIS 707 ( Ky. 1947 ).

Where previous employer abandoned its business enterprise prior to subsequent employer’s commencement of business under same name, and there was no connection, negotiation, or transaction between the two parties, the subsequent employer was not a successor to prior employer for purposes of unemployment insurance contribution. Wildot, Inc. v. Kentucky Unemployment Ins. Comm'n, 762 S.W.2d 17, 1988 Ky. LEXIS 85 ( Ky. 1988 ).

4. Part of Contract.

This section becomes a part of every contract to transfer a subject employer’s business as if expressed therein. Oppenheimer v. Commonwealth, 305 Ky. 147 , 202 S.W.2d 373, 1947 Ky. LEXIS 707 ( Ky. 1947 ).

5. Buyer’s Liability for Tax.

Where evidence showed that the buyer of a business knew of seller’s liability for unpaid unemployment compensation tax, buyer was liable for tax notwithstanding seller’s failure to include amount of tax in verified statement of creditors furnished to buyer, in compliance with the bulk sales act, and notwithstanding the fact that the Unemployment Compensation (now Insurance) Commission, because of failure of seller to give notice that he was subject to the tax, had no record of the tax delinquency. Kentucky State Liquors, Inc. v. Commonwealth, 311 Ky. 62 , 223 S.W.2d 368, 1949 Ky. LEXIS 1056 ( Ky. 1949 ).

Kentucky Unemployment Insurance Commission erred in finding that eight employing bodies were successors-in-interest to the tax account and tax rate of the company, because 787 Ky. Admin. Regs. 1:300, § 2, did not provide that successorship could arise among more than two employing units, and the failure to perform separate analyses constituted manifest injustice, as it was in clear contravention of the mandates of 787 Ky. Admin. Regs. 1:300, § 2. Trading Post Mgmt. Co., LLC v. Ky. Unemployment Ins. Comm'n, 355 S.W.3d 451, 2011 Ky. App. LEXIS 212 (Ky. Ct. App. 2011).

Cited:

Friedman v. Commonwealth, 266 S.W.2d 114, 1954 Ky. LEXIS 788 ( Ky. 1954 ).

341.550. Pooled account for contributing employers.

  1. The cabinet shall maintain a pooled account for contributing employers to which shall be credited:
    1. Payments received from the federal government under the provisions of Section 204(a)(1) of the “Federal-State Extended Unemployment Compensation Act of 1970,” and amendments thereto;
    2. All realized earnings and gains on investments of the fund;
    3. Except as provided in KRS 341.540 , any balance remaining in the reserve account of any previously subject contributing employer after such employer has ceased to be subject to this chapter;
    4. Any payments into or amounts in the fund not allocable to any employer’s reserve account; and
    5. Any payments collected under subsection (2) of this section.
    1. Except as provided in  KRS 341.530(4), any benefits paid through error which would otherwise have been chargeable to the reserve account of a contributory employer shall be charged against the pooled account. However, no employer making payments to the fund in lieu of contributions shall be relieved of charges by reason of this subsection. (2) (a) Except as provided in  KRS 341.530(4), any benefits paid through error which would otherwise have been chargeable to the reserve account of a contributory employer shall be charged against the pooled account. However, no employer making payments to the fund in lieu of contributions shall be relieved of charges by reason of this subsection.
    2. The repayment of benefits paid erroneously as provided in subsection (1) of KRS 341.415 shall be credited to the pooled account. The pooled account shall be credited with any sums deducted from future benefits as provided in KRS 341.415 and shall be credited to the pooled account, provided the benefits were charged to the pooled account by reason of KRS 341.530(3), or paragraph (a) of this subsection. Except as provided in KRS 341.415(1), if the benefits were charged to and paid by any employer making payments to the fund in lieu of contributions, the amount of the repayment or the sum deducted from future benefits shall be credited to the reimbursing account of that employer, and may upon written request from the employer be refunded without interest.
  2. One-half (1/2) of the benefits paid to an eligible worker in accordance with KRS 341.700 to 341.740 shall be charged against the pooled account, except that during a period in which federal payments to states under Section 204 of the Federal-State Extended Unemployment Compensation Act of 1970 are reduced under an order issued under Section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985 (Public Law 99-177), one-half (1/2) of the benefits paid to an eligible worker in accordance with KRS 341.700 to 341.740 , reduced by an amount equal to the difference of one-half (1/2) of the benefits paid to an eligible worker in accordance with KRS 341.700 to 341.740 and the amount of the federal payment, shall be charged against the pooled account.

History. 4748g-15: amend. Acts 1948, ch. 216, § 22; 1950, ch. 206, § 1; 1958, ch. 4, § 13; 1966, ch. 255, § 255; 1972, ch. 21, § 33; 1974, ch. 74, Art. VI, § 107(23); 1986, ch. 397, § 2, effective July 15, 1986; 1996, ch. 266, § 19, effective July 15, 1996; 2013, ch. 45, § 3, effective June 25, 2013.

Compiler’s Notes.

Section 204(a)(1) of the Federal-State Extended Unemployment Compensation Act of 1970, referred to in subsections (1)(a) and (3), is compiled as a note following 26 USCS § 3304.

NOTES TO DECISIONS

  1. Transfer of Funds.
  2. Return of Contributions.
  3. Employer’s Reserve Account.
1. Transfer of Funds.

The contributions of the railroad workers paid pursuant to the unemployment compensation law and credited thereunder to the pooled account were taxes validly levied under Ky. Const., § 180 solely for the purpose of paying unemployment compensation benefits, and the legislature could not transfer this fund to a federal fund in an effort to obtain benefits of a federal law which removed railroad workers from operation of state law. Unemployment Compensation Com. v. Savage, 283 Ky. 301 , 140 S.W.2d 1073, 1940 Ky. LEXIS 322 ( Ky. 1940 ).

2. Return of Contributions.

Railroad workers were not entitled to a return of contributions made under the unemployment compensation law to the pooled account on the theory that fund constituted a trust. Unemployment Compensation Com. v. Savage, 283 Ky. 301 , 140 S.W.2d 1073, 1940 Ky. LEXIS 322 ( Ky. 1940 ).

Subsection (2) of KRS 341.550 applies to all benefits paid through error, and therefore trial court properly held that unemployment benefits erroneously paid for former employees of employers who elect to reimburse the Division of Unemployment Insurance for benefits paid to their former employees in lieu of paying contributions to the division are charged to the pooled account, and not the reimbursing employers. Kentucky Unemployment Ins. Com. v. Kaco Unemployment Ins. Fund, Inc., 793 S.W.2d 845, 1990 Ky. App. LEXIS 91 (Ky. Ct. App. 1990).

3. Employer’s Reserve Account.

Where members of International Labor Union went on strike at Ford plant at Dearborn, Michigan, thereby causing the Ford plant at Louisville to close due to lack of parts to assemble, employees of Louisville plant were not out on strike and therefore unemployment compensation payments were properly charged to Ford Company’s reserve account rather than being charged to Commission’s pooled account. Ford Motor Co. v. Kentucky Unemployment Compensation Com., 243 S.W.2d 657, 1951 Ky. LEXIS 1148 ( Ky. 1951 ).

341.560. Emergency diversion of contributions to pooled account. [Repealed.]

Compiler’s Notes.

This section (4748g-15: amend. Acts 1950, ch. 206, § 1) was repealed by Acts 1958, ch. 4, § 14.

341.565. Prior determinations not affected. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 4, § 18) was repealed by Acts 1968, ch. 152, § 168.

341.570. Representation in court — Expense of suit.

  1. In any civil action to enforce the provisions of this chapter or in which the commission or the cabinet is an interested party, the commission or the cabinet may be represented by any qualified attorney who is designated by the secretary for that purpose. The expenses and compensation of such special attorney and any experts employed in connection with such proceedings shall be considered a proper cost of the administration of this chapter.
  2. All criminal actions for violation of any provision of this chapter, or of any rules or regulations issued under it, shall be prosecuted by the Attorney General of this state, or, at his request and under his direction, by the county attorney or Commonwealth attorney of any county in which the employing unit has a place of business or the violator resides or has filed a claim.

History. 4748g-17: amend. Acts 1948, ch. 216, § 23; 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, § 107(23), (31); 1988, ch. 106, § 12, effective July 15, 1988; 1994, ch. 136, § 3, effective July 15, 1994.

Opinions of Attorney General.

A sheriff who serves an arrest warrant for a case involving unemployment insurance fraud may not receive his fees for service of process from the Division of Unemployment Insurance, but may only be paid if the defendant is convicted and pays fees and costs to the district court. OAG 78-495 .

Research References and Practice Aids

Cross-References.

Attorneys for state agencies, employment of, KRS 12.210 .

341.580. Limitations on payment of benefits.

Benefits shall be considered due and payable under this chapter only to the extent provided in this chapter and to the extent that money is available therefor to the credit of the unemployment insurance fund, and neither this state, the secretary, nor the cabinet shall be liable for any amount in excess of such sums.

History. 4748g-18: amend. Acts 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, § 104.

341.590. Additional contributions if federal government fails to provide funds for administration.

If the federal government does not, for any fiscal year, make the certification for payment to this state of funds for the assistance of this state in the administration of this chapter as provided by Title III of the Federal Social Security Act (49 Stat. 620) or any amendment thereto, every employer subject to this chapter shall, for that fiscal year, pay to the unemployment compensation administration fund, to be used for the administration of this chapter, contributions equal to three-tenths of one percent (0.3%) of such subject employer’s wages payable for covered employment for the same period. These contributions shall be collected the same as contributions for the payment of benefits.

History. 4748g-20: amend. Acts 1950, ch. 206, § 1.

Compiler’s Notes.

Title III of the Social Security Act is compiled as 42 USCS § 501 et seq.

NOTES TO DECISIONS

Cited:

Unemployment Compensation Com. v. Savage, 283 Ky. 301 , 140 S.W.2d 1073, 1940 Ky. LEXIS 322 ( Ky. 1940 ).

341.595. Governor to apply for advances from federal unemployment account and request cap on Federal Unemployment Tax Act credit reduction.

  1. The Governor is hereby authorized to apply for advances to the credit of this state’s account in the unemployment trust fund from the federal unemployment account in such fund as provided for in Title XII of the Social Security Act when the balance of this state’s account requires such action.
  2. If eligible under federal law, the Governor shall make application in 2013 and in subsequent calendar years to the secretary of the United States Department of Labor to request a cap on any Federal Unemployment Tax Act, 26 U.S.C. secs. 3301 to 3311, credit reduction.

History. Enact. Acts 1978, ch. 389, § 27, effective July 1, 1978; 2012, ch. 52, § 4, effective April 11, 2012.

Compiler’s Notes.

Title XII of the Social Security Act is compiled as 42 USCS § 1321 et seq.

341.600. Continuation — No vested right created.

  1. The secretary, the cabinet, the commission, its personnel, or organization and funds shall constitute a continuation of the analogous provisions of the previous unemployment compensation laws of this state and the provisions of this chapter shall be considered as substituted in a continuing way for the provisions of such laws. Nothing in this chapter shall waive any payments required of any employer under any such laws.
  2. No vested right shall exist against amendment or repeal of any part of this chapter.

History. 4748g-19, 4748-20: amend. Acts 1950, ch. 206, § 1; 1974, ch. 74, Art. VI, § 105.

NOTES TO DECISIONS

1. Legislative Power.

This section does not enlarge the inherent power of the legislature to amend or repeal its acts, but merely declares that the legislature reserves the right to abandon or change the policy embodied in the act, a right it possessed without the reservation. It is specific notice to interested persons that the law may be discontinued or changed at any time. Kentucky Color & Chemical Co. v. Barnes, 290 Ky. 681 , 162 S.W.2d 531, 1942 Ky. LEXIS 477 ( Ky. 1942 ).

341.610. Pledge to replace funds.

Kentucky hereby obligates itself for the replacement, within a reasonable time, of any moneys received pursuant to Title III of the Social Security Act which, because of any action or contingency, are lost or expended for purposes other than, or in amounts in excess of, those found necessary by the appropriate federal agency for the proper administration of this chapter.

History. 4748g-25: amend. Acts 1950, ch. 206, § 1.

Compiler’s Notes.

Title III of the Social Security Act is compiled as 42 USCS § 501 et seq.

341.611. Payment of interest on advances — Surcharge under KRS 341.614 on contributing employers.

  1. Any interest required to be paid on advances under Title XII of the Social Security Act shall be paid in a timely manner and shall not be paid directly or indirectly, by an equivalent reduction in unemployment contributions or otherwise, by the state unemployment insurance fund.
  2. Such interest and the repayment of money, including any interest thereon, received from any source related to the payment of interest on advances under Title XII of the Social Security Act shall be paid by the penalty and interest account as required by KRS 341.295 .
  3. In the event there are insufficient funds in the unemployment compensation administration fund to pay the interest on such advances under Title XII of the Social Security Act or the repayment of money, including any interest thereon, received from any source related to the payment of interest on such advances, all subject contributing employers shall be assessed a surcharge as provided in KRS 341.614 .

History. Enact. Acts 1984, ch. 326, § 1, effective July 13, 1984; 1996, ch. 266, § 20, effective July 15, 1996; 2012, ch. 52, § 5, effective April 11, 2012.

Compiler’s Notes.

Title XII of the Social Security Act, referred to in subsection (1), is compiled as 42 USCS § 1321 et seq.

341.612. Interest payment fund.

  1. There is created within the State Treasury a special fund for unemployment insurance known as the interest payment fund which shall be administered separate and apart from all public money or funds of the state.
  2. The unemployment insurance interest payment fund shall be used exclusively for the purposes of payment of interest on advances under Title XII of the Social Security Act received from the United States Department of Labor in support of the unemployment insurance programs of the Commonwealth and repayment of money, including any interest thereon, received from any source related to the payment of interest on such advances. The secretary shall have full power, authority, and jurisdiction over the fund, including all money, property, and securities belonging thereto, except where specified otherwise in KRS 341.295 , and he shall perform any act necessary or convenient in the administration of the fund consistent with this section.
  3. Any money collected for the purpose of paying interest on advances under Title XII of the Social Security Act or repayment of money, including any interest thereon, received from any source related to the payment of interest on such advances shall be invested at interest in banks or other interest-bearing obligations of the United States of America. Investments shall at all times be made so that all the assets of the unemployment insurance interest payment fund shall always be convertible into cash when needed for the payment of interest on advances under Title XII of the Social Security Act or repayment of money, including any interest thereon, received from any source related to the payment of interest on advances. All interest income received under this section shall be credited to the interest payment fund. The State Treasurer shall dispose of securities or other property belonging to the unemployment insurance interest payment fund only under the direction of the secretary and the secretary of the Finance and Administration Cabinet.
  4. Any balance of money remaining in the unemployment insurance interest payment fund after all interest due and owing on advances under Title XII of the Social Security Act and repayment of money, including any interest thereon, received from any source related to the payment of interest on advances have been paid shall be credited on a proportional basis to the reserve account of each active subject contributing employer.

History. Enact. Acts 1984, ch. 326, § 2, effective July 13, 1984; 1996, ch. 266, § 21, effective July 15, 1996; 2012, ch. 52, § 6, effective April 11, 2012.

Compiler’s Notes.

Title XII of the Social Security Act, referred to throughout the section, is compiled as 42 USCS § 1321 et seq.

341.613. Surcharge on employers to pay interest due on advances. [Repealed.]

Compiler’s Notes.

This section (Enact Acts 1984, ch. 326, § 3, effective July 13, 1984; 1986, ch. 26, § 8, effective July 15, 1986) was repealed by Acts 1996, ch. 266, § 24, effective July 15, 1996.

341.614. Surcharge to be paid by subject contributing employers each year funds insufficient in unemployment compensation administration fund — Percentage rate — Annual adjustment — Payment and collection.

  1. Effective January 1, 2014, there shall be a surcharge upon all subject contributing employers for any year there are insufficient funds in the unemployment compensation administration fund for the payment of interest on advances under Title XII of the Social Security Act or for the repayment of money, including any interest thereon, received from any source related to the payment of interest on such advances.
    1. The surcharge shall be twenty-two hundredths of one percent (0.22%) of the first nine thousand six hundred dollars ($9,600) in wages paid to each worker by a subject contributing employer or his predecessor with respect to covered employment during any calendar year. (2) (a) The surcharge shall be twenty-two hundredths of one percent (0.22%) of the first nine thousand six hundred dollars ($9,600) in wages paid to each worker by a subject contributing employer or his predecessor with respect to covered employment during any calendar year.
    2. Effective January 1, 2015, and each calendar year thereafter, the secretary shall adjust the surcharge percentage rate based on any increase to the taxable wage base for that calendar year as provided in KRS 341.030(7). The purpose of the adjustment shall be to maintain costs per worker comparable to the original surcharge. Any reduction in the surcharge percentage rate shall correspond to the increase to the taxable wage base for that calendar year and shall be rounded up to the nearest one-hundredth of one percent (0.01%).
    3. Notwithstanding paragraph (b) of this subsection, the secretary may reduce the surcharge percentage rate or suspend the surcharge for any calendar year based on the balance of the unemployment insurance interest payment fund and the projected amount due for interest on advances under Title XII of the Social Security Act and for repayment of money, including any interest thereon, received from any source related to the payment of interest on such advances.
  2. The surcharge established in this section shall be due and payable at the same time and in the same manner as employer contributions. Any surcharge collected shall be deposited in the unemployment insurance interest payment fund.
  3. Any surcharge unpaid on the date on which it is due and payable, pursuant to subsection (3) of this section, shall be subject to interest at the rate of one and one-half percent (1.5%) per month or fraction thereof, not to exceed ninety percent (90%) of the amount of such surcharge, from and after such date until payment is received by the cabinet, regardless of whether such delinquency has been reduced to a judgment or not as provided in subsection (6) of this section or is the subject of an administrative appeal or court action. The interest collected shall be deposited in the unemployment insurance interest payment fund.
  4. A lien of the same nature and having the same force, effect, and priority as provided in KRS 341.310 shall commence on all property of a subject contributing employer delinquent in the payment of any surcharge or interest thereon.
  5. If, after due notice, any subject contributing employer defaults in payment of any surcharge or interest thereon, the amount due may be collected by a civil action instituted in the Franklin Circuit Court or the Franklin District Court depending on the jurisdictional amount in controversy, including interest and penalties, in the name of the state, and the subject contributing employer adjudged in default shall pay the costs of the action. Civil actions brought under this section shall be heard by the court, without the intervention of a jury, at the earliest possible date and shall be entitled to preference on the calendar of the court over all other civil actions, except petitions for judicial review under this chapter and cases arising under the Kentucky workers’ compensation law.
  6. At or after the commencement of an action under subsection (6) of this section, attachment may be had against the property of the liable subject contributing employer for such surcharge and interest without execution of a bond, or, after judgment has been entered, an execution may be issued against the property of such employer without the execution of a bond.
  7. An action for the recovery of a surcharge or interest thereon under this section shall be barred, and any lien therefor shall be canceled and extinguished, unless collected or suit for collection has been filed within ten (10) years from the due date of such surcharge.
  8. Notwithstanding subsection (6) of this section, any delinquent surcharge or interest thereon may be collected in accordance with the levy and distraint provisions of this chapter.
  9. Any delinquent surcharge or interest collected after July 31, 2017, shall not be subject to the credit provisions contained in KRS 341.612 and shall be deposited into the penalty and interest account.

History. Enact. Acts 2012, ch. 52, § 7, effective April 11, 2012; 2017 ch. 133, § 4, effective June 29, 2017.

341.620. Expenditure of federal moneys.

All moneys received pursuant to Title III of the Social Security Act, as amended, shall be expended solely for the purposes and in the amounts found necessary by the Federal Bureau of Employment Security for the proper and efficient administration of this chapter.

History. 4748g-26: amend. Acts 1950, ch. 206, § 1.

Compiler’s Notes.

Title III of the Social Security Act is compiled as 42 USCS § 501 et seq.

341.630. Authority to acquire site and erect office building; employment of architects and engineers; methods of financing. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 228, § 1) was repealed by Acts 1950, ch. 206, § 1.

341.640. Bonds; terms and conditions of; source of payment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 228, § 1) was repealed by Acts 1950, ch. 206, § 1.

341.650. Use of proceeds of bonds; bondholders’ lien; receiver. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 228, § 1) was repealed by Acts 1950, ch. 206, § 1.

341.660. Pledge of funds accumulating under KRS 341.290, and rents; use of surplus. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 228, § 1; 1948, ch. 216, § 24, effective April 1, 1948) was repealed by Acts 1950, ch. 206, § 1.

341.670. Resolutions for administration of building and income, and for security of bondholders. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 228, § 1) was repealed by Acts 1950, ch. 206, § 1.

341.680. Refunding bonds; additional bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 228, § 1) was repealed by Acts 1950, ch. 206, § 1.

341.690. Effect when checks not presented within one (1) year — Cancellation and reissue.

None of the funds, accounts or moneys administered, established, or maintained under this chapter shall be credited or otherwise transferred to the general expenditure fund or any other fund or account by reason of the provisions of KRS 41.370 or subject to escheat under any other section of the Kentucky Revised Statutes. Any unpaid check issued pursuant to the provisions of this chapter may be cleared from the records of the Treasurer within the time and in the manner specified in KRS 41.370 , except that the amount of such check shall remain to the credit of the fund or account against which it was drawn. Such checks if thereafter presented for payment may be paid within the time and in the manner set forth in such section, except that the amount thereof shall be charged to the fund or account against which it was originally drawn.

History. Enact. Acts 1962, ch. 207, § 4.

Extended Benefits

341.700. Effect of provisions relating to regular benefits on claims for, and the payment of, extended benefits.

Except when the result would be inconsistent with KRS 341.094 , 341.096 and 341.710 to 341.740 , as provided in the regulations of the secretary, the provisions of this chapter which apply to claims for, or the payment of, regular benefits shall apply to claims for, and the payment of, extended benefits.

History. Enact. Acts 1972, ch. 21, § 34; 1974, ch. 74, Art. VI, § 107(31).

341.710. Eligibility requirements for extended benefits.

  1. A worker shall be eligible to receive extended benefits with respect to any week of unemployment in his eligibility period only if the secretary finds that with respect to such week:
    1. He is an “exhaustee” as defined in subsection (6) of KRS 341.096 ; and
    2. He has satisfied the requirements of this chapter for the receipt of regular benefits that are applicable to workers claiming extended benefits, including not being subject to a disqualification for the receipt of benefits.
  2. A worker shall not be eligible for extended benefits for any week if:
    1. Extended benefits are payable for such week pursuant to an interstate claim filed in any state under the interstate benefit payment plan, and no extended benefit period is in effect for such week in such state. However, this provision shall not apply with respect to the first two (2) weeks for which extended benefits are payable to a worker pursuant to an interstate claim filed under the interstate benefit payment plan; or
    2. The secretary finds that during such period:
      1. He failed to accept any offer of suitable work (as required for extended benefits), or he failed to apply for any suitable work to which he was referred by the secretary; or
      2. He failed to actively engage in seeking work as defined in this section.
  3. Any individual who has been found ineligible for extended benefits by reason of the provisions set forth in this section shall be denied benefits for the week in which such failure occurred and thereafter until he has been employed in each of four (4) subsequent weeks (whether or not consecutive) and has earned at least four (4) times his weekly benefit rate in bona fide full-time covered employment.
  4. For the purpose of this section, a worker shall be treated as actively engaged in seeking work during any week if:
    1. Such worker has engaged in a systematic and sustained effort to obtain work during such week; and
    2. Such worker furnishes tangible evidence that he has engaged in such effort during such week.
  5. The secretary shall refer any claimant entitled to receive extended benefits to any suitable work which meets the criteria as required in KRS 341.712 for workers claiming extended benefits.
  6. Notwithstanding any other provisions of this chapter, if the benefit year of any worker ends within an extended benefit period, the remaining balance of extended benefits that such worker would, but for this section, be entitled to receive in that extended benefit period, with respect to weeks of unemployment beginning after the end of the benefit year, shall be reduced (but not below zero (0)) by the product of the number of weeks for which the worker received any amounts as trade adjustment allowances within that benefit year, multiplied by the worker’s weekly benefit amount for extended benefits.

History. Enact. Acts 1972, ch. 21, § 35; 1974, ch. 74, Art. VI, § 107(21); 1982, ch. 67, § 8, effective July 15, 1982; 1994, ch. 136, § 4, effective July 15, 1994; 1996, ch. 266, § 22, effective July 15, 1996.

341.712. Suitable work standards for extended benefit claimants.

  1. No work shall be deemed to be suitable work for a worker making a claim for extended benefits, nor a disqualification imposed for refusal thereof, which does not accord with the labor standard provisions required by 26 U.S.C. sec. 3304(a)(5) (Section 3304(a)(5) of the Internal Revenue Code of 1954) and set forth herein under KRS 341.100 , or if a worker would not be denied benefits by reason of the requirements set forth in KRS 341.350 as required by 26 U.S.C. sec. 3304(a)(8) (Section 3304(a)(8) of the Internal Revenue Code of 1954).
  2. For purposes of this section, the term “suitable work” shall mean, with respect to any worker, any work which is within such worker’s capabilities, provided, however, that the gross average weekly remuneration payable for the week must exceed the sum of:
    1. The worker’s extended weekly benefit amount as determined under this chapter, plus
    2. The amount, if any, of supplemental unemployment benefits as defined in 26 U.S.C. sec. 501(c)(17) (D) (Section 501(c)(17)(D) of the Internal Revenue Code of 1954) payable to such worker for such week; and further
    3. Pays wages not less than the higher of:
      1. The minimum wage provided by 29 U.S.C. sec. 206 (Section 6(a)(1) of the Fair Labor Standards Act of 1938) without regard to any exemption; or
      2. The applicable state or local minimum wage;
    4. Provided, however, that no worker shall be denied extended benefits for failure to accept an offer of or apply for any job which meets the definition of suitability as described above if:
      1. The position was not offered to such worker in writing or was not listed with the employment service; or
      2. Such failure could not result in a denial of benefits under the definition of suitable work for regular benefit claimants as provided in this chapter to the extent that such criteria of suitability in that section are not inconsistent with the provisions of this subsection; or
      3. The worker furnishes satisfactory evidence to the secretary that his prospects for obtaining work in his customary occupation within a reasonably short period are good. If such evidence is deemed satisfactory for this purpose, the determination of whether any work is suitable with respect to such worker shall be made in accordance with the definition of suitable work for regular benefit claimants without regard to the definition specified in this section.

History. Enact. Acts 1982, ch. 67, § 2, effective July 15, 1982; 1994, ch. 136, § 5, effective July 15, 1994; 1996, ch. 266, § 23, effective July 15, 1996.

341.720. Weekly extended benefit rate.

The weekly extended benefit rate payable to a worker for a week of total unemployment in his eligibility period shall be an amount equal to the weekly benefit rate payable to him during his applicable benefit year.

History. Enact. Acts 1972, ch. 21, § 36.

341.730. Total extended benefit amount — Formula for high unemployment periods.

The total extended benefit amount payable to any eligible worker with respect to his applicable benefit year shall be the least of the following amounts:

  1. Fifty percent (50%) of the maximum amount of regular benefits which were payable to him under this chapter in his applicable benefit year; or
  2. Thirteen (13) times the weekly benefit rate which was payable to him under this chapter for a week of total unemployment in the applicable benefit year.
  3. Effective with respect to weeks beginning in a high unemployment period, subsections (1) and (2) of this section shall be applied by substituting:
    1. Eighty percent (80%) for fifty percent (50%) in subsection (1) of this section; and
    2. Twenty (20) for thirteen (13) in subsection (2) of this section.

As used in this subsection, “high unemployment period” means any period during which an extended benefit period would be in effect if KRS 341.094(3) were applied by substituting eight percent (8%) for six and one-half percent (6.5%).

History. Enact. Acts 1972, ch. 21, § 37; 2010, ch. 99, § 2, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Couch v. Ky. Unemployment Ins. Comm’n, — S.W.3d —, 2006 Ky. App. LEXIS 245 (Ky. Ct. App. 2006).

Research References and Practice Aids

2010-2012 Budget Reference.

See State/Executive Branch Budget, 2010 (1st Extra. Sess.) Ky. Acts ch. 1, Pt. I, D, 7, (2) at 26.

341.735. Reduction of extended benefit amount.

Notwithstanding any state statute to the contrary and to the extent permitted by federal law, for any week during a period in which federal payments to states under Section 204 of the Federal-State Extended Unemployment Compensation Act of 1970 are reduced under an order issued under Section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985 (Public Law 99-177):

  1. The weekly extended benefit amount payable to an individual for a week of total unemployment in his eligibility period shall be reduced by an amount equivalent to one-half (1/2) of the federal reduction and the resultant weekly amount, if not a full dollar amount, shall be adjusted to the nearest multiple of one dollar ($1);
  2. The total extended benefit amount payable to any eligible worker with respect to his applicable benefit year shall be reduced by an amount equivalent to the aggregate of the reductions under subsection (1) of this section in the weekly amounts paid to the individual; and
  3. Subject employers, except governmental entities as defined in KRS 341.069 , shall be charged, in addition to the amount of regular benefits chargeable under KRS 341.530 , the difference of the amount of extended benefits paid the worker under this section and the amount of the federal payment after reduction. Governmental entities excepted by this subsection shall be charged for regular and extended benefits in accordance with KRS 341.530 .

History. Enact. Acts 1986, ch. 397, § 1, effective July 15, 1986.

Compiler’s Notes.

Section 204 of the Federal-State Extended Unemployment Compensation Act of 1970, referred to in the introductory language, is codified as a note following 26 USCS § 3304. Section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985 (Public Law 99-177), referred to in the introductory language, is codified as 2 USCS § 902.

341.740. Beginning and termination of extended benefit period.

Whenever an extended benefit period is to become effective in this state as a result of a state “on” indicator, or an extended benefit period is to be terminated in this state as a result of a state “off” indicator, the secretary shall make an appropriate public announcement.

History. Enact. Acts 1972, ch. 21, § 38; 1974, ch. 74, Art. VI, § 107(21); 1982, ch. 67, § 9, effective July 15, 1982.

Levy and Distraint

341.800. Demand for payment — Levy upon and sale of property of subject employer.

  1. In addition to any other remedy provided by the laws of the Commonwealth, if any subject employer assessed or determined liable for the payment of contributions, including penalties and interest, refuses to pay contributions when due and has not sought administrative or judicial review of the assessment or determination as provided for in this chapter, or if such subject employer has exhausted or abandoned administrative or judicial review provided in this chapter so that the assessment or determination is final, due, and owing, then the secretary or his delegate may cause a demand to be made on the subject employer for the payment thereof. If the contributions, including interest and penalties, remain unpaid for ten (10) days after demand, then the secretary or his delegate may collect the contributions, including interest and penalties, and the costs of such collection by levy upon all nonexempt real and personal property, disposable earnings, and right to property belonging to the subject employer or on which there is a lien provided in this chapter for the payment of such contributions.
  2. As soon as practicable after seizure of property, notice in writing shall be given by the secretary or his delegate to the owner of the property. The notice shall be given to the owner either in person or by certified mail to his last known address. Such notice shall specify the sum demanded and shall contain, in the case of personal property, an account of the property seized and, in the case of real property, a description with reasonable certainty of the property seized.
  3. The secretary or his delegate shall, as soon as practicable after the seizure of the property, cause a notification of the sale of the seized property to be published in the newspaper with the largest circulation within the county wherein such seizure is made. Such notice shall be published once each week for three (3) successive weeks. In addition, such notice shall be posted at the courthouse and three (3) other public places in the county where the seizure is made for fifteen (15) days next preceding sale. The notice shall specify the property to be sold and the time, place, manner, and condition of the sale thereof.
  4. If any property liable to levy is not divisible, so as to enable the secretary or his delegate by sale of a part thereof to raise the whole amount of the contributions, penalty, interest, and cost of the levy, the whole of such property shall be sold.
  5. The time of sale shall not be less than thirty (30) nor more than ninety (90) days from the time the seizure is made. The place of sale shall be within the county in which the property is seized, except by special order of the secretary.
  6. The sale shall not be conducted in any manner other than by public auction, or by public sale under sealed bids. In the case of the seizure of several items of property, the secretary or his delegate may offer such items for sale separately, in groups, or in the aggregate and accept whichever method produces the highest aggregate amount.
  7. The secretary or his delegate shall determine whether payment in full shall be required at the time of acceptance of a bid, or whether a part of such payment may be deferred for such period, not to exceed one (1) month, as he may determine to be appropriate. If payment in full is required at the time of acceptance of a bid and is not then and there paid, the secretary or his delegate shall forthwith proceed to again sell the property as provided in subsection (6) of this section. If the conditions of the sale permit part of the payment to be deferred, and if such part is not paid within the prescribed period, suit may be instituted in the Franklin Circuit Court or the Circuit Court of the county where the sale was conducted against the purchaser for the purchase price or such part thereof as has not been paid, together with interest at the rate of twelve percent (12%) per annum from the date of the sale; or, in the discretion of the secretary, the sale may be declared to be null and void for failure to make full payment of the purchase price and the property may again be advertised and sold as provided in this section. In the event of such readvertisement and sale, any new purchaser shall receive such property or rights to property, free and clear of any claim or right of the former defaulting purchaser, of any nature whatsoever, and the amount paid upon the bid price by such defaulting purchaser shall be forfeited.
  8. If the secretary or his delegate determines that any property seized is liable to perish or become greatly reduced in price or value by keeping, or that such property cannot be kept without great expense, he shall appraise the value of such property and, if the owner of the property can be readily found, the secretary or his delegate shall give him notice of such determination of the appraised value of the property. The property shall be returned to the owner if, within such time as may be specified in the notice, the owner pays to the secretary or his delegate an amount equal to the appraised value or gives bond in such form, with such sureties, and in such amount as the secretary or his delegate determines to be appropriate in the circumstances. If the owner does not pay such amount or furnish such bond in accordance with this subsection, the secretary or his delegate shall as soon as practicable make public sale of the property without regard to the advertisement requirements or the time limitations contained in subsections (3) and (5) of this section.
  9. No proceedings under this section shall be commenced more than ten (10) years after the assessment or determination becomes final.
  10. The term “levy” as used in KRS 341.800 to 341.830 includes the power of distraint and seizure. A levy shall extend only to property possessed and obligations existing at the time thereof. In any case in which the secretary or his delegate may levy upon property or rights thereto, he may seize and sell such property and rights to property, whether real, personal, tangible, or intangible.

History. Enact. Acts 1986, ch. 26, § 10, effective July 15, 1986; 2007, ch. 62, § 4, effective June 26, 2007.

341.805. Notification of levy or release.

  1. Levy may be made with respect to any unpaid contributions including penalties and interest only after the cabinet has given notice and demand to the subject employer in writing of the intention to make such levy. Such notice and demand shall be given in person, or shall be sent by certified mail to the employer’s last known address, no less than ten (10) days before the date of levy.
    1. The effect of a levy on salary or wages payable to or received by a person shall be continuous from the date such levy is first made until the liability out of which such levy arose is satisfied or becomes unenforceable by reason of lapse of time; and (2) (a) The effect of a levy on salary or wages payable to or received by a person shall be continuous from the date such levy is first made until the liability out of which such levy arose is satisfied or becomes unenforceable by reason of lapse of time; and
    2. With respect to a levy described in paragraph (a) of this subsection, the cabinet shall promptly release the levy when the liability out of which such levy arose is satisfied or becomes unenforceable by reason of lapse of time and shall promptly notify the person upon whom such levy was made that such levy has been released.

History. Enact. Acts 1986, ch. 26, § 11, effective July 15, 1986.

341.810. Surrender of property upon which levy made — Effect of surrender or failure to do so.

  1. Any person in possession of or obligated with respect to property or rights to property subject to levy upon which a levy has been made shall, upon demand of the secretary or his delegate, surrender such property or rights or discharge such obligation to the secretary or his delegate, except such part of the property or rights as is, at the time of such demand, subject to an attachment or execution under any judicial process.
  2. Any person who fails or refuses to surrender any property or rights to property subject to levy shall be liable in his own person and estate to the Commonwealth in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of contributions, interest and penalties for the collection of which such levy has been made, together with costs and interest on such and at the rate of fifteen percent (15%) per annum from the date of such levy. Any amount other than costs recovered under this subsection shall be credited against the subject employer’s liability for the collection of which such levy was made.
  3. Any person in possession of or obligated with respect to property or rights to property subject to levy upon which a levy has been made who, upon demand by the secretary or his delegate, surrenders such property or rights to property or discharges such obligation to the secretary or his delegate shall be discharged from any obligation or liability to the delinquent employer with respect to such property or rights to property arising from such surrender or payment.

History. Enact. Acts 1986, ch. 26, § 12, effective July 15, 1986.

341.815. Right of redemption.

  1. Any employer whose property has been levied upon shall have the right to pay the amount due, together with the expense of the proceeding, to the secretary or his delegate at any time prior to the sale thereof and upon such payment the secretary or his delegate shall cause such property to be restored to him and all further proceedings in connection with the levy on such property shall cease from the time of such payment.
  2. The owner of any real property sold as provided in KRS 341.800 , his heirs, executors, or administrators, or any person having an interest therein, or a lien thereon, or any person in his behalf, shall be permitted to redeem the real property sold or any particular tract of such property, at any time within one hundred twenty (120) days after the date of the sale. Such property or tract of property shall be permitted to be redeemed only upon payment to the purchaser, or in case he cannot be found in the county in which the property to be redeemed is situated, then to the secretary or his delegate, for the use of the purchaser, his heirs, or assigns, the amount paid by such purchaser and interest thereon at the rate of twenty percent (20%) per annum from the date of sale.
  3. In the case of property sold pursuant to KRS 341.800 the secretary or his delegate shall give to the purchaser certificate of sale upon payment in full of the purchase price. The certificate shall set forth a description of the property purchased, for whose contributions the property was sold and the price paid therefor.
  4. In all cases where property is sold pursuant to KRS 341.800 , except real property, the certificate of sale issued pursuant to subsection (3) of this section shall have the following effect:
    1. Shall be prima facie evidence of the rights of the secretary or his delegate to make such sale, and of the regularity of the proceeding of the sale;
    2. Shall transfer to the purchaser all right, title and interest of the subject employer in and to the property sold;
    3. If such property consists of stock, shall be notice when received, to any corporation, company, or association of such transfer, and shall be authority to such corporation, company, or association to record the transfer on its books and records in the same manner as if the stocks were transferred or assigned by the party holding the same, in lieu of any prior certificate, which shall be void, whether canceled or not;
    4. If the subject of sale is securities or other evidence of debt, shall be a good and valid receipt to the person holding the same, as against any person holding or claiming to hold possession of such securities or other evidences of debt; and
    5. If such property consists of a motor vehicle, shall be notice, when received by any public official charged with the registration of title to motor vehicles, of such transfer and shall be authority to such official to record the transfer on his books and records in the same manner as if title to such motor vehicle were transferred or assigned by the party holding the same, in lieu of any original or prior title, which shall be void, whether canceled or not.
  5. In the case of any real property sold pursuant to KRS 341.800 and not redeemed in the manner and within the time provided in subsection (2) of this section, the secretary or his delegate shall execute in accordance with the laws of the Commonwealth, to the purchaser of such real property upon surrender of the certificate of sale, a deed to the real property so purchased by him, reciting the facts set forth in the certificate. The deed executed pursuant to this subsection shall have the following effect:
    1. Shall be prima facie evidence of the rights of the secretary or his delegate to make such sale, and of the regularity of the proceedings of the sale; and
    2. If the proceedings of the secretary or his delegate have been substantially in accordance with the provisions of KRS 341.800 , such deed shall be considered and operate as a conveyance of all right, title and interest the employer has in and to the real property thus sold at the time the lien of the Commonwealth attached thereto.
  6. A certificate of sale of personal property given or a deed to real property executed pursuant to this section shall discharge such property from all liens, encumbrances, and titles over which the lien of the Commonwealth, with respect to which the levy was made, had priority.

History. Enact. Acts 1986, ch. 26, § 13, effective July 15, 1986.

341.820. Release or return of property.

  1. It shall be lawful for the secretary or his delegate, under administrative regulations prescribed by the secretary, to release all or part of the property or rights to property levied upon where the secretary or his delegate determines that such action will facilitate the collection of the liability, but such release shall not operate to prevent any subsequent levy.
  2. If the secretary or his delegate determines that property has been wrongfully levied upon, it shall be lawful for the secretary or his delegate to return the specific property levied upon or an amount of money equal to the amount of money received by the Commonwealth from a sale of such property.
  3. Property shall be returned immediately. If such property is not returned immediately, or if such proceeds of sale are not returned immediately, then the owner of such property shall have a period of four (4) years in which to initiate action for its return.

History. Enact. Acts 1986, ch. 26, § 14, effective July 15, 1986.

341.825. Right to copy books and records.

  1. If a levy has been made or is about to be made on any property or right to property, any person having custody or control of any books or records containing evidence or statements relating to the property or right to property subject to levy shall, on demand of the secretary or his delegate, exhibit such books or records to the secretary or his duly authorized representative.
  2. The secretary or his delegate may make copies of such books or records at the cabinet’s expense.

History. Enact. Acts 1986, ch. 26, § 15, effective July 15, 1986.

341.830. Assessment against transferee of a fraudulent conveyance made with intent to hinder or evade collection of contributions due from transferor.

  1. When the cabinet reasonably believes that any employer has divested himself by gift, conveyance, assignment, transfer of, or charge upon any property, whether real, personal, tangible or intangible, with the intent to hinder or evade the collection of any contributions assessed or to be assessed by the cabinet or declared by the employer on a report filed with the cabinet, any transferee of such property may be assessed by the cabinet an amount equal to the lesser of the amount of contributions assessed against the transferor employer or the fair market value of the property so transferred. However, no assessment shall be made pursuant to this section against a transferee who takes the property for full and valuable consideration in money or money’s worth, unless such transferee had notice of the intent of the transferor employer to hinder or evade the collection of any contributions.
  2. Any assessment made by the cabinet against a transferee pursuant to subsection (1) of this section is, except as provided in this section, subject to the same provisions and limitations as in the case of the contributions for which the liabilities were incurred.
  3. The period of limitation for assessment of any liability against a transferee pursuant to subsection (1) of this section shall be as follows:
    1. In the case of an initial transferee, within one (1) year after the expiration of the period of limitation for assessment against the transferor employer; and
    2. In the case of the liability of a transferee, within one (1) year after the expiration of the period of limitation for assessment against the preceding transferee, but not more than three (3) years after the expiration of the period of limitation for assessment against the initial transferor employer.
  4. The notice of any assessment against a transferee made pursuant to subsection (1) of this section shall be either given to the transferee in person or sent by mail to such transferee’s last known address.

History. Enact. Acts 1986, ch. 26, § 16, effective July 15, 1986.

341.835. Fines, penalties and interest credited to administrative fund.

All fines, penalties and interest on delinquent contributions collected under KRS 341.800 to 341.830 shall be credited to the unemployment compensation administration fund to be used for the administration of this chapter.

History. Enact. Acts 1986, ch. 26, § 17, effective July 15, 1986.

Research References and Practice Aids

2010-2012 Budget Reference.

See State/Executive Branch Budget, 2010 (1st Extra. Sess.) Ky. Acts ch. 1, Pt. I, D, 7, (1) at 26.

Construction of Acts

341.980. Construction of this chapter.

  1. In enacting this chapter, it is the intention of the General Assembly to comply with the requirements of the Federal Unemployment Tax Act and all subsequent amendments including, but not limited to P.L. 94-566 and P.L. 95-19. Contributions or reimbursements required herein on account of previously uncovered services performed prior to January 1, 1978, as defined in Section 121 of the Federal Unemployment Compensation Act of 1976, as amended, and benefits based on such services in employment defined herein shall be payable in the same amount, on the same terms and subject to the same conditions as benefits payable on the basis of other service subject to this chapter. Interpretations of the provisions contained herein or elsewhere in this chapter should be consistent with such federal act and interpretations thereof and substantial weight should be given to the commentary contained in those documents entitled “Draft Language and Commentary to Implement the Unemployment Compensation Amendments of 1976 — P.L. 94-566”, “Draft Legislation to Implement the Employment Security Amendments of 1970  . . . . .  H. R. 14705” and “Manual of State Employment Security Legislation, Revised September 1950,” published by the United States Department of Labor, Manpower Administration.
  2. If Public Law 94-566 or the federal act it amends shall for any cause become inoperative in its application, or stayed pendente lite, as to services performed by employees of this state or one (1) or more of its counties, cities, or political subdivisions, then, the provisions of KRS 341.050(1)(d), 341.070(3) and 341.277 , by virtue of that fact, shall, likewise and to the same extent, become inoperative as to such services. Any unobligated contributions in the unemployment insurance fund paid into the fund by such governmental entity, or returned to this state by the United States Treasurer because such federal law becomes inoperative, shall be refunded to the governmental entity contributors proportionately to their unexpended contributions under regulations of the commission. Nothing in this subsection shall waive payments accrued in lieu of contributions.

History. Enact. Acts 1972, ch. 21, § 40; 1978, ch. 389, § 31, effective July 1, 1978.

Compiler’s Notes.

The federal Unemployment Tax Act is compiled as 26 USCS § 3301 et seq.

P.L. 94-566 is compiled primarily as notes following 26 USCS § 3304. P.L. 95-19 is compiled primarily as notes following 26 USCS § 3304. Section 121 of the Federal Unemployment Compensation Act of 1976 (P.L. 94-566) is compiled as a note following 26 USCS § 3304.

341.982. Construction of Acts 1978, Chapter 389.

Nothing in Acts 1978, Chapter 389, shall be construed to be more stringent than the federal law covering this subject matter.

History. Enact. Acts 1978, ch. 389, § 32, effective July 1, 1978.

Penalties

341.990. Penalties.

  1. Except as otherwise provided in subsection (11) of this section, any employee of any state agency who violates any of the provisions of KRS 341.110 to 341.230 shall be guilty of a Class B misdemeanor.
  2. Any person subpoenaed to appear and testify or produce evidence in an inquiry, investigation, or hearing conducted under this chapter who fails to obey the subpoena shall be guilty of a Class B misdemeanor.
  3. Any subject employer, or officer or agent of a subject employer, who violates subsection (1) of KRS 341.470 shall be guilty of a Class A misdemeanor.
  4. Any person who violates subsection (2) of KRS 341.470 shall be guilty of a Class A misdemeanor.
  5. Any person who knowingly makes a false statement or representation of a material fact or knowingly fails to disclose a material fact to the secretary to obtain or increase any benefit under this chapter or under an employment security law of any other state, or of the federal government, either for himself or for any other person, business entity, or organization shall be guilty of a Class A misdemeanor unless the value of the benefits procured or attempted to be procured is one hundred dollars ($100) or more, in which case he shall be guilty of a Class D felony.
    1. Any person who knowingly makes a false statement or representation, or who knowingly fails to disclose a material fact to prevent or reduce the payment of benefits to any worker entitled thereto, or to avoid becoming or remaining subject to this chapter, or to avoid or reduce any payment required of an employing unit under this chapter shall be guilty of a Class A misdemeanor unless the liability avoided or attempted to be avoided is one hundred dollars ($100) or more, in which case he shall be guilty of a Class D felony. (6) (a) Any person who knowingly makes a false statement or representation, or who knowingly fails to disclose a material fact to prevent or reduce the payment of benefits to any worker entitled thereto, or to avoid becoming or remaining subject to this chapter, or to avoid or reduce any payment required of an employing unit under this chapter shall be guilty of a Class A misdemeanor unless the liability avoided or attempted to be avoided is one hundred dollars ($100) or more, in which case he shall be guilty of a Class D felony.
    2. Any person who willfully fails or refuses to furnish any reports required, or to produce or permit the inspection or copying of records required in this chapter shall be guilty of a Class B misdemeanor. Each such false statement, representation or failure and each day of failure or refusal shall constitute a separate offense.
  6. In any prosecution for the violation of subsection (5) or (6) of this section, it shall be a defense if the person relied on the advice of an employee or agent of the Office of Unemployment Insurance, Department of Workforce Investment.
  7. Any person who willfully violates any provision of this chapter or any rule or regulation under it, the violation of which is made unlawful or the observance of which is required under the terms of this chapter, and for which no specific penalty is prescribed in this chapter or in any other applicable statute, shall be guilty of a violation. Each day the violation continues shall constitute a separate offense.
  8. In addition to the higher rates imposed under KRS 341.540 (7), any person, whether or not an employing unit, who knowingly advises or assists an employing unit in the violation or attempted violation of KRS 341.540 or any other provision of this chapter related to determining the assignment of a contribution rate shall be subject to a civil monetary penalty of not less than five thousand dollars ($5,000).
  9. Proceeds from all penalties imposed under subsection (9) of this section and KRS 341.540 shall be deposited in the unemployment compensation administration account and shall be expended solely for the cost of administration of this chapter consistent with KRS 341.240 .
  10. Any person who violates the confidentiality provision in KRS 341.190(4) shall be guilty of a Class A misdemeanor.

History. 4748g-4, 4748g-12, 4748g-16: amend. Acts 1950, ch. 206, § 1; 1952, ch. 154, § 18; 1974, ch. 74, Art. VI, § 107(21); 1979 (Ex. Sess.), ch. 2, §§ 7, 12, effective February 10, 1979; 1992, ch. 463, § 37, effective July 14, 1992; 1994, ch. 136, § 6, effective July 15, 1994; 2005, ch. 12, § 2, effective June 20, 2005; 2006, ch. 211, § 155, effective July 12, 2006; 2008, ch. 111, § 2, effective July 15, 2008; 2017 ch. 133, § 5, effective June 29, 2017; 2019 ch. 146, § 69, effective June 27, 2019.

NOTES TO DECISIONS

Cited:

Louisville Title Mortg. Co. v. Commonwealth, 299 Ky. 224 , 184 S.W.2d 963, 1944 Ky. LEXIS 1041 ( Ky. 1944 ).

Research References and Practice Aids

Cross-References.

Designation of offenses, see KRS 532.020 .

Fines for misdemeanors, see KRS 534.040 .

Sentence of imprisonment for felony, see KRS 532.060 .

Sentence of imprisonment for misdemeanors, see KRS 532.090 .

ALR

Criminal liability for wrongfully obtaining unemployment benefits. 80 A.L.R.3d 1280.

CHAPTER 342 Workers’ Compensation

342.001. Definitions. [Repealed.]

Compiler’s Notes.

This section (Acts 1964, ch. 192, § 1) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.0011 .

NOTES TO DECISIONS

2. Preemption.

Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C.S. § 1324a et seq., does not preempt a workers’ compensation law that covers unauthorized aliens; eligibility for workers’ compensation benefits is not a realistic incentive for an individual to enter the United States unlawfully. Moreover, a decision to exclude unauthorized aliens from the application of KRS ch. 342 contravenes the purpose of the IRCA by providing a financial incentive for unscrupulous employers to hire unauthorized workers and engage in unsafe practices, leaving the burden of caring for injured workers and their dependents to the residents of the Commonwealth of Kentucky. Abel Verdon Constr. v. Rivera, 348 S.W.3d 749, 2011 Ky. LEXIS 116 ( Ky. 2011 ).

342.0011. Definitions for chapter.

As used in this chapter, unless the context otherwise requires:

  1. “Injury” means any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. “Injury” does not include the effects of the natural aging process, and does not include any communicable disease unless the risk of contracting the disease is increased by the nature of the employment. “Injury” when used generally, unless the context indicates otherwise, shall include an occupational disease and damage to a prosthetic appliance, but shall not include a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury;
  2. “Occupational disease” means a disease arising out of and in the course of the employment;
  3. An occupational disease as defined in this chapter shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident to the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause. The occupational disease shall be incidental to the character of the business and not independent of the relationship of employer and employee. An occupational disease need not have been foreseen or expected but, after its contraction, it must appear to be related to a risk connected with the employment and to have flowed from that source as a rational consequence;
  4. “Injurious exposure” shall mean that exposure to occupational hazard which would, independently of any other cause whatsoever, produce or cause the disease for which the claim is made;
  5. “Death” means death resulting from an injury or occupational disease;
  6. “Carrier” means any insurer, or legal representative thereof, authorized to insure the liability of employers under this chapter and includes a self-insurer;
  7. “Self-insurer” is an employer who has been authorized under the provisions of this chapter to carry his own liability on his employees covered by this chapter;
  8. “Department” means the Department of Workers’ Claims in the Labor Cabinet;
  9. “Commissioner” means the commissioner of the Department of Workers’ Claims under the direction and supervision of the secretary of the Labor Cabinet;
  10. “Board” means the Workers’ Compensation Board;
    1. “Temporary total disability” means the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment; (11) (a) “Temporary total disability” means the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment;
    2. “Permanent partial disability” means the condition of an employee who, due to an injury, has a permanent disability rating but retains the ability to work; and
    3. “Permanent total disability” means the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury, except that total disability shall be irrebuttably presumed to exist for an injury that results in:
      1. Total and permanent loss of sight in both eyes;
      2. Loss of both feet at or above the ankle;
      3. Loss of both hands at or above the wrist;
      4. Loss of one (1) foot at or above the ankle and the loss of one (1) hand at or above the wrist;
      5. Permanent and complete paralysis of both arms, both legs, or one (1) arm and one (1) leg;
      6. Incurable insanity or imbecility; or
      7. Total loss of hearing;
  11. “Income benefits” means payments made under the provisions of this chapter to the disabled worker or his dependents in case of death, excluding medical and related benefits;
  12. “Medical and related benefits” means payments made for medical, hospital, burial, and other services as provided in this chapter, other than income benefits;
  13. “Compensation” means all payments made under the provisions of this chapter representing the sum of income benefits and medical and related benefits;
  14. “Medical services” means medical, surgical, dental, hospital, nursing, and medical rehabilitation services, medicines, and fittings for artificial or prosthetic devices;
  15. “Person” means any individual, partnership, limited partnership, limited liability company, firm, association, trust, joint venture, corporation, or legal representative thereof;
  16. “Wages” means, in addition to money payments for services rendered, the reasonable value of board, rent, housing, lodging, fuel, or similar advantages received from the employer, and gratuities received in the course of employment from persons other than the employer as evidenced by the employee’s federal and state tax returns;
  17. “Agriculture” means the operation of farm premises, including the planting, cultivation, producing, growing, harvesting, and preparation for market of agricultural or horticultural commodities thereon, the raising of livestock for food products and for racing purposes, and poultry thereon, and any work performed as an incident to or in conjunction with the farm operations, including the sale of produce at on-site markets and the processing of produce for sale at on-site markets. It shall not include the commercial processing, packing, drying, storing, or canning of such commodities for market, or making cheese or butter or other dairy products for market;
  18. “Beneficiary” means any person who is entitled to income benefits or medical and related benefits under this chapter;
  19. “United States,” when used in a geographic sense, means the several states, the District of Columbia, the Commonwealth of Puerto Rico, the Canal Zone, and the territories of the United States;
  20. “Alien” means a person who is not a citizen, a national, or a resident of the United States or Canada. Any person not a citizen or national of the United States who relinquishes or is about to relinquish his residence in the United States shall be regarded as an alien;
  21. “Insurance carrier” means every insurance carrier or insurance company authorized to do business in the Commonwealth writing workers’ compensation insurance coverage and includes the Kentucky Employers Mutual Insurance Authority and every self-insured group operating under the provisions of this chapter;
    1. “Severance or processing of coal” means all activities performed in the Commonwealth at underground, auger, and surface mining sites; all activities performed at tipple or processing plants that clean, break, size, or treat coal; and all activities performed at coal loading facilities for trucks, railroads, and barges. Severance or processing of coal shall not include acts performed by a final consumer if the acts are performed at the site of final consumption. (23) (a) “Severance or processing of coal” means all activities performed in the Commonwealth at underground, auger, and surface mining sites; all activities performed at tipple or processing plants that clean, break, size, or treat coal; and all activities performed at coal loading facilities for trucks, railroads, and barges. Severance or processing of coal shall not include acts performed by a final consumer if the acts are performed at the site of final consumption.
    2. “Engaged in severance or processing of coal” shall include all individuals, partnerships, limited partnerships, limited liability companies, corporations, joint ventures, associations, or any other business entity in the Commonwealth which has employees on its payroll who perform any of the acts stated in paragraph (a) of this subsection, regardless of whether the acts are performed as owner of the coal or on a contract or fee basis for the actual owner of the coal. A business entity engaged in the severance or processing of coal, including but not limited to administrative or selling functions, shall be considered wholly engaged in the severance or processing of coal for the purpose of this chapter. However, a business entity which is engaged in a separate business activity not related to coal, for which a separate premium charge is not made, shall be deemed to be engaged in the severance or processing of coal only to the extent that the number of employees engaged in the severance or processing of coal bears to the total number of employees. Any employee who is involved in the business of severing or processing of coal and business activities not related to coal shall be prorated based on the time involved in severance or processing of coal bears to his total time;
  22. “Premium” for every self-insured group means any and all assessments levied on its members by such group or contributed to it by the members thereof. For special fund assessment purposes, “premium” also includes any and all membership dues, fees, or other payments by members of the group to associations or other entities used for underwriting, claims handling, loss control, premium audit, actuarial, or other services associated with the maintenance or operation of the self-insurance group;
    1. “Premiums received” for policies effective on or after January 1, 1994, for insurance companies means direct written premiums as reported in the annual statement to the Department of Insurance by insurance companies, except that “premiums received” includes premiums charged off or deferred, and, on insurance policies or other evidence of coverage with provisions for deductibles, the calculated cost for coverage, including experience modification and premium surcharge or discount, prior to any reduction for deductibles. The rates, factors, and methods used to calculate the cost for coverage under this paragraph for insurance policies or other evidence of coverage with provisions for deductibles shall be the same rates, factors, and methods normally used by the insurance company in Kentucky to calculate the cost for coverage for insurance policies or other evidence of coverage without provisions for deductibles, except that, for insurance policies or other evidence of coverage with provisions for deductibles effective on or after January 1, 1995, the calculated cost for coverage shall not include any schedule rating modification, debits, or credits. For policies with provisions for deductibles with effective dates on or after January 1, 1995, assessments shall be imposed on premiums received as calculated by the deductible program adjustment. The cost for coverage calculated under this paragraph by insurance companies that issue only deductible insurance policies in Kentucky shall be actuarially adequate to cover the entire liability of the employer for compensation under this chapter, including all expenses and allowances normally used to calculate the cost for coverage. For policies with provisions for deductibles with effective dates of May 6, 1993, through December 31, 1993, for which the insurance company did not report premiums and remit special fund assessments based on the calculated cost for coverage prior to the reduction for deductibles, “premiums received” includes the initial premium plus any reimbursements invoiced for losses, expenses, and fees charged under the deductibles. The special fund assessment rates in effect for reimbursements invoiced for losses, expenses, or fees charged under the deductibles shall be those percentages in effect on the effective date of the insurance policy. For policies covering leased employees as defined in KRS 342.615 , “premiums received” means premiums calculated using the experience modification factor of each lessee as defined in KRS 342.615 for each leased employee for that portion of the payroll pertaining to the leased employee. (25) (a) “Premiums received” for policies effective on or after January 1, 1994, for insurance companies means direct written premiums as reported in the annual statement to the Department of Insurance by insurance companies, except that “premiums received” includes premiums charged off or deferred, and, on insurance policies or other evidence of coverage with provisions for deductibles, the calculated cost for coverage, including experience modification and premium surcharge or discount, prior to any reduction for deductibles. The rates, factors, and methods used to calculate the cost for coverage under this paragraph for insurance policies or other evidence of coverage with provisions for deductibles shall be the same rates, factors, and methods normally used by the insurance company in Kentucky to calculate the cost for coverage for insurance policies or other evidence of coverage without provisions for deductibles, except that, for insurance policies or other evidence of coverage with provisions for deductibles effective on or after January 1, 1995, the calculated cost for coverage shall not include any schedule rating modification, debits, or credits. For policies with provisions for deductibles with effective dates on or after January 1, 1995, assessments shall be imposed on premiums received as calculated by the deductible program adjustment. The cost for coverage calculated under this paragraph by insurance companies that issue only deductible insurance policies in Kentucky shall be actuarially adequate to cover the entire liability of the employer for compensation under this chapter, including all expenses and allowances normally used to calculate the cost for coverage. For policies with provisions for deductibles with effective dates of May 6, 1993, through December 31, 1993, for which the insurance company did not report premiums and remit special fund assessments based on the calculated cost for coverage prior to the reduction for deductibles, “premiums received” includes the initial premium plus any reimbursements invoiced for losses, expenses, and fees charged under the deductibles. The special fund assessment rates in effect for reimbursements invoiced for losses, expenses, or fees charged under the deductibles shall be those percentages in effect on the effective date of the insurance policy. For policies covering leased employees as defined in KRS 342.615, “premiums received” means premiums calculated using the experience modification factor of each lessee as defined in KRS 342.615 for each leased employee for that portion of the payroll pertaining to the leased employee.
    2. “Direct written premium” for insurance companies means the gross premium written less return premiums and premiums on policies not taken but including policy and membership fees.
    3. “Premium,” for policies effective on or after January 1, 1994, for insurance companies means all consideration, whether designated as premium or otherwise, for workers’ compensation insurance paid to an insurance company or its representative, including, on insurance policies with provisions for deductibles, the calculated cost for coverage, including experience modification and premium surcharge or discount, prior to any reduction for deductibles. The rates, factors, and methods used to calculate the cost for coverage under this paragraph for insurance policies or other evidence of coverage with provisions for deductibles shall be the same rates, factors, and methods normally used by the insurance company in Kentucky to calculate the cost for coverage for insurance policies or other evidence of coverage without provisions for deductibles, except that, for insurance policies or other evidence of coverage with provisions for deductibles effective on or after January 1, 1995, the calculated cost for coverage shall not include any schedule rating modifications, debits, or credits. For policies with provisions for deductibles with effective dates on or after January 1, 1995, assessments shall be imposed as calculated by the deductible program adjustment. The cost for coverage calculated under this paragraph by insurance companies that issue only deductible insurance policies in Kentucky shall be actuarially adequate to cover the entire liability of the employer for compensation under this chapter, including all expenses and allowances normally used to calculate the cost for coverage. For policies with provisions for deductibles with effective dates of May 6, 1993, through December 31, 1993, for which the insurance company did not report premiums and remit special fund assessments based on the calculated cost for coverage prior to the reduction for deductibles, “premium” includes the initial consideration plus any reimbursements invoiced for losses, expenses, or fees charged under the deductibles.
    4. “Return premiums” for insurance companies means amounts returned to insureds due to endorsements, retrospective adjustments, cancellations, dividends, or errors.
    5. “Deductible program adjustment” means calculating premium and premiums received on a gross basis without regard to the following:
      1. Schedule rating modifications, debits, or credits;
      2. Deductible credits; or
      3. Modifications to the cost of coverage from inception through and including any audit that are based on negotiated retrospective rating arrangements, including but not limited to large risk alternative rating options;
  23. “Insurance policy” for an insurance company or self-insured group means the term of insurance coverage commencing from the date coverage is extended, whether a new policy or a renewal, through its expiration, not to exceed the anniversary date of the renewal for the following year;
  24. “Self-insurance year” for a self-insured group means the annual period of certification of the group created pursuant to KRS 342.350(4) and 304.50-010 ;
  25. “Premium” for each employer carrying his own risk pursuant to KRS 342.340(1) shall be the projected value of the employer’s workers’ compensation claims for the next calendar year as calculated by the commissioner using generally-accepted actuarial methods as follows:
    1. The base period shall be the earliest three (3) calendar years of the five (5) calendar years immediately preceding the calendar year for which the calculation is made. The commissioner shall identify each claim of the employer which has an injury date or date of last injurious exposure to the cause of an occupational disease during each one (1) of the three (3) calendar years to be used as the base, and shall assign a value to each claim. The value shall be the total of the indemnity benefits paid to date and projected to be paid, adjusted to current benefit levels, plus the medical benefits paid to date and projected to be paid for the life of the claim, plus the cost of medical and vocational rehabilitation paid to date and projected to be paid. Adjustment to current benefit levels shall be done by multiplying the weekly indemnity benefit for each claim by the number obtained by dividing the statewide average weekly wage which will be in effect for the year for which the premium is being calculated by the statewide average weekly wage in effect during the year in which the injury or date of the last exposure occurred. The total value of the claims using the adjusted weekly benefit shall then be calculated by the commissioner. Values for claims in which awards have been made or settlements reached because of findings of permanent partial or permanent total disability shall be calculated using the mortality and interest discount assumptions used in the latest available statistical plan of the advisory rating organization defined in Subtitle 13 of KRS Chapter 304. The sum of all calculated values shall be computed for all claims in the base period;
    2. The commissioner shall obtain the annual payroll for each of the three (3) years in the base period for each employer carrying his own risk from records of the department and from the records of the Department of Workforce Investment, Education and Workforce Development Cabinet. The commissioner shall multiply each of the three (3) years of payroll by the number obtained by dividing the statewide average weekly wage which will be in effect for the year in which the premium is being calculated by the statewide average weekly wage in effect in each of the years of the base period;
    3. The commissioner shall divide the total of the adjusted claim values for the three (3) year base period by the total adjusted payroll for the same three (3) year period. The value so calculated shall be multiplied by 1.25 and shall then be multiplied by the employer’s most recent annualized payroll, calculated using records of the department and the Department of Workforce Investment data which shall be made available for this purpose on a quarterly basis as reported, to obtain the premium for the next calendar year for assessment purposes under KRS 342.122 ;
    4. For November 1, 1987, through December 31, 1988, premium for each employer carrying its own risk shall be an amount calculated by the board pursuant to the provisions contained in this subsection and such premium shall be provided to each employer carrying its own risk and to the funding commission on or before January 1, 1988. Thereafter, the calculations set forth in this subsection shall be performed annually, at the time each employer applies or renews its application for certification to carry its own risk for the next twelve (12) month period and submits payroll and other data in support of the application. The employer and the funding commission shall be notified at the time of the certification or recertification of the premium calculated by the commissioner, which shall form the employer’s basis for assessments pursuant to KRS 342.122 for the calendar year beginning on January 1 following the date of certification or recertification;
    5. If an employer having fewer than five (5) years of doing business in this state applies to carry its own risk and is so certified, its premium for the purposes of KRS 342.122 shall be based on the lesser number of years of experience as may be available including the two (2) most recent years if necessary to create a three (3) year base period. If the employer has less than two (2) years of operation in this state available for the premium calculation, then its premium shall be the greater of the value obtained by the calculation called for in this subsection or the amount of security required by the commissioner pursuant to KRS 342.340(1);
    6. If an employer is certified to carry its own risk after having previously insured the risk, its premium shall be calculated using values obtained from claims incurred while insured for as many of the years of the base period as may be necessary to create a full three (3) year base. After the employer is certified to carry its own risk and has paid all amounts due for assessments upon premiums paid while insured, the employer shall be assessed only upon the premium calculated under this subsection;
    7. “Premium” for each employer defined in KRS 342.630(2) shall be calculated as set forth in this subsection; and
    8. Notwithstanding any other provision of this subsection, the premium of any employer authorized to carry its own risk for purposes of assessments due under this chapter shall be no less than thirty cents ($0.30) per one hundred dollars ($100) of the employer’s most recent annualized payroll for employees covered by this chapter;
  26. “SIC code” as used in this chapter means the Standard Industrial Classification Code contained in the latest edition of the Standard Industrial Classification Manual published by the Federal Office of Management and Budget;
  27. “Investment interest” means any pecuniary or beneficial interest in a provider of medical services or treatment under this chapter, other than a provider in which that pecuniary or investment interest is obtained on terms equally available to the public through trading on a registered national securities exchange, such as the New York Stock Exchange or the American Stock Exchange, or on the National Association of Securities Dealers Automated Quotation System;
  28. “Managed health care system” means a health care system that employs gatekeeper providers, performs utilization review, and does medical bill audits;
  29. “Physician” means physicians and surgeons, psychologists, optometrists, dentists, podiatrists, and osteopathic and chiropractic practitioners acting within the scope of their license issued by the Commonwealth;
  30. “Objective medical findings” means information gained through direct observation and testing of the patient applying objective or standardized methods;
  31. “Work” means providing services to another in return for remuneration on a regular and sustained basis in a competitive economy;
  32. “Permanent impairment rating” means percentage of whole body impairment caused by the injury or occupational disease as determined by the “Guides to the Evaluation of Permanent Impairment”;
  33. “Permanent disability rating” means the permanent impairment rating selected by an administrative law judge times the factor set forth in the table that appears at KRS 342.730(1)(b); and
  34. “Guides to the Evaluation of Permanent Impairment” means, except as provided in KRS 342.262 :
    1. The fifth edition published by the American Medical Association; and
    2. For psychological impairments, Chapter 12 of the second edition published by the American Medical Association.

HISTORY: Enact. Acts 1972, ch. 78, § 2; 1978, ch. 256, § 3, effective June 17, 1978; 1980, ch. 104, § 13, effective July 15, 1980; 1984, ch. 414, § 39, effective July 13, 1984; 1987 (Ex. Sess.), ch. 1, § 51, effective October 26, 1987; 1990, ch. 19, § 1, effective July 13, 1990; 1994, ch. 181, Part 1, § 1, effective April 4, 1994; 1996, ch. 271, § 22, effective July 15, 1996; 1996 (1st Ex. Sess.), ch. 1, § 1, effective December 12, 1996; 1998, ch. 341, § 44, effective July 15, 1998; 2000, ch. 514, § 1, effective July 14, 2000; 2005, ch. 7, § 34, effective March 1, 2005; 2005, ch. 123, § 42, effective June 20, 2005; 2006, ch. 149 § 235, effective July 12, 2006; 2006, ch. 211, § 156, effective July 12, 2006; 2007, ch. 93, § 2, effective June 26, 2007; 2009, ch. 11, § 79, effective June 25, 2009; 2010, ch. 24, § 1777, effective July 15, 2010; 2010, ch. 90, § 1, effective July 15, 2010; 2017 ch. 134, § 6, effective June 29, 2017; 2018 ch. 54, § 1, effective July 14, 2018; 2019 ch. 146, § 70, effective June 27, 2019.

Compiler’s Notes.

This section was formerly compiled as KRS 342.620 .

Section 103 of Acts 1994, ch. 181 provided that subsection (25) of this section “relating to the definition of premiums for deductible policies shall be effective retroactively for insurance policies or other evidences of coverage with deductibles in effect on and after January 1, 1994.”

NOTES TO DECISIONS

  1. Purpose.
  2. Construction.
  3. Application.
  4. Injury.
  5. —Psychological Injury.
  6. — Communicable Disease.
  7. — Evidence.
  8. Occupational Disease.
  9. Work-Related or Arising Out of Employment.
  10. —“Going and Coming” Rule.
  11. — Psychological, Psychiatric, or Stress-Related Change.
  12. Disability.
  13. —Total.
  14. — Post-injury.
  15. Temporary total disability benefits.
  16. — Offsets.
  17. Agriculture.
  18. Recreational Activity.
  19. Compensable Employment.
  20. — Student Trainees.
  21. Claims.
  22. — Consolidation.
  23. Educational or Mental Shortcomings.
  24. Factors Considered.
  25. Objective Medical Findings.
  26. “Physicians.”
  27. “Persons”.
  28. “Widow”.
  29. Temporary Total Disability.
  30. Impairment Rating.
  31. Self-Insurer.
  32. Carrier.

8.5. — Natural Aging Process.

15.5. Compensation.

1. Purpose.

Purpose of change in Workers’ Compensation Law expanding coverage to nontraumatic injuries was to expand the injury element and not the employment element of a workers’ compensation claim. Seventh Street Road Tobacco Warehouse v. Stillwell, 550 S.W.2d 469, 1976 Ky. LEXIS 155 ( Ky. 1976 ).

The purpose of workers’ compensation is to redress physical and mental injuries and damages arising from the employment relationship and inasmuch as liability for both slander per se and false imprisonment can be established without a showing of actual damages, there is nothing for which the Workers’ Compensation Act would compensate. Columbia Sussex Corp. v. Hay, 627 S.W.2d 270, 1981 Ky. App. LEXIS 312 (Ky. Ct. App. 1981).

As a practical matter, workers compensation coverage constitutes a settlement between the employee and the employer whereby the employee settles his tort claim for the amount he will receive as compensation. Dix & Assoc. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 1990 Ky. LEXIS 107 ( Ky. 1990 ).

It is well established that the Workers’ Compensation Act is social legislation which encompasses a number of public policy considerations. Foremost of these is the policy of compensating disabled workers for the decrease in their wage earning capacity which has resulted from an injury caused by work. Second, with the goal of promoting the prompt disposition of compensation claims and of controlling the expense of prosecuting a claim, both the Legislature and the courts have adopted a policy encouraging the settlement of these claims. Newberg v. Weaver, 866 S.W.2d 435, 1993 Ky. LEXIS 125 ( Ky. 1993 ).

While KRS 342.0011 expressly permitted a claimant to bring a claim for workers’ compensation benefits where a physical trauma brought about a mental change in a claimant, it also permitted the claimant to bring the claimant’s claim for mental trauma that caused a physical change in the claimant, as the statute’s language did not bar recognition of that type of injury and the statute’s purpose was to bar claims involving mental trauma that caused mental change, which was not the claimant’s situation. McCowan v. Matsushita Appliance Co., 95 S.W.3d 30, 2002 Ky. LEXIS 198 ( Ky. 2002 ).

2. Construction.

Case law requiring that an employee's cumulative injury be apportioned to the employer based upon the percentage of disability attributable to work performed by the employee while in the employ of that employer did not apply to the instant case where that case law had been decided under a different version of Ky. Rev. Stat. Ann. ch. 342, and nothing in the version of chapter 342 in effect at the time of the claim so limited the employer's liability. Hale v. CDR Operations, Inc., 474 S.W.3d 129, 2015 Ky. LEXIS 1935 ( Ky. 2015 ).

3. Application.

The Workers’ Compensation Act is strictly limited to recovery for actual injuries; thus, the fact that damages under either cause could punitively be assigned does not serve to extend its application to actions for slander or false imprisonment. Columbia Sussex Corp. v. Hay, 627 S.W.2d 270, 1981 Ky. App. LEXIS 312 (Ky. Ct. App. 1981).

The substantive rights of a claimant under Workers’ Compensation Law are fixed by the statutory provisions in effect on the date of his injury, because those statutory provisions in effect at the time of injury are considered to be a part of the contract of employment between the claimant and his employer. Collins v. Cumberland Gap Provision Co., 754 S.W.2d 864, 1988 Ky. App. LEXIS 89 (Ky. Ct. App. 1988).

It is not a constitutional violation for ALJs or the Commissioner of the Workers’ Compensation Board not to have a set of guidelines or criteria by which to enforce this section. The 14th Amendment of the U.S. Constitution and the Prohibition Against Arbitrary Powers of Section Two of the Kentucky Constitution provide no right of action because all workers are treated the same; and, no due process rights are violated because workers are allowed a hearing at which they may testify, present evidence, and cross-examine physicians testifying for the defense and because they are afforded an exhaustive review process. Miller v. East Ky. Beverage/Pepsico, 951 S.W.2d 329, 1997 Ky. LEXIS 95 ( Ky. 1997 ).

Any injury caused by a work-connected external force satisfied the requirement of “traumatic” within the meaning of the statute; the work-related traumatic event had to be the proximate cause producing a harmful change in the human organism. Thomasson v. Ryan's Family Steakhouse, 2001 Ky. App. LEXIS 880 (Ky. Ct. App. Oct. 5, 2001), aff'd, 82 S.W.3d 889, 2002 Ky. LEXIS 159 ( Ky. 2002 ).

Although appellant, who had diabetes, claimed he fell from a bridge and was severely and permanently injured within the scope and course of his employment, appellant placed himself in a position of risk when he climbed over a guardrail. Appellant’s injuries did not originate from a risk connected with his employment and did not flow from his employment as a rational consequence. Hampton v. Intech Contr., LLC, 2011 Ky. App. LEXIS 229 (Ky. Ct. App. Nov. 18, 2011), rev'd, 2013 Ky. Unpub. LEXIS 17 (Ky. Mar. 21, 2013).

Under KRS 342.285 , the administrative law judge (ALJ) was designated the finder of fact in workers’ compensation cases and under KRS 342.290 , the Board or a reviewing court could not substitute its judgment for the ALJs as to the weight of evidence on questions of fact. As a result, the state supreme court had to uphold the ALJ’s ruling in favor of the employee on the employee’s occupational hearing loss claim against the employer, as substantial evidence in the record showed the employee suffered a pattern of hearing loss compatible with that caused by hazardous noise exposure, and substantial evidence also showed that the employee sustained repetitive exposure to KRS 342.0011(4) injurious noise in the workplace, including the employee’s final employment with the employer, meaning the employer was exclusively liable for KRS 342.7305(4) benefits. Greg's Constr. v. Keeton, 385 S.W.3d 420, 2012 Ky. LEXIS 124 ( Ky. 2012 ).

Board had the authority to vacate an order that the Chief Administrative Law Judge (ALJ) entered that resolved a post-award medical fee dispute that the employer filed against the employee. Under KRS 342.285 , the Board could determine whether the ALJ acted in excess of his powers and that the order was not in conformity to the provisions of KRS 342.0011 et seq., and could vacate the order the ALJ entered in the dispute because, pursuant to KRS 342.230(8), the ALJ was tasked with scheduling the work of the administrative law judges and could not, as the ALJ did in the dispute, assign the matter to his own docket once the ALJ determined that the employer had made a prima facie case supporting its motion to reopen. Twin Res., LLC v. Workman, 394 S.W.3d 417, 2013 Ky. App. LEXIS 42 (Ky. Ct. App. 2013).

4. Injury.

It was no error not to find whether a workers' compensation claimant suffered from a temporary work-related injury because it was found the claimant suffered no work-related injury. Khani v. Alliance Chiropractic, 456 S.W.3d 802, 2015 Ky. LEXIS 76 ( Ky. 2015 ).

It was not error for an administrative law judge (ALJ) to base a decision, on reopening, that a worker's condition had worsened since an initial award of benefits on a medical report finding the worker's condition had not changed since the initial award because the decision properly compared the medical report's impairment rating of 23% to the rating the initial award was based on, which was 13% and which was res judicata, so substantial evidence supported the ALJ's decision on reopening, as the dispositive question was not whether the report's author found an increase in impairment at the time of reopening but whether the worker's physical impairment at the time of reopening increased relative to the initial award's impairment rating. LKLP CAC Inc. v. Fleming, 2016 Ky. App. LEXIS 112 (Ky. Ct. App. July 1, 2016), aff'd, 520 S.W.3d 382, 2017 Ky. LEXIS 370 ( Ky. 2017 ).

If it is found, or should be found, that the nature and duration of a man’s work probably aggravated a degenerative disc condition to the degree that it culminated in an active physical impairment sooner than would have been the case had the work been less strenuous, to that extent the preexisting condition is an injury within the meaning of this section and compensation for the resultant disability should be apportioned between the employer and the special fund, with the fund responsible for that portion of the disability that would exist regardless of the work and the employer responsible for that portion attributable to the work. Haycraft v. Corhart Refractories Co., 544 S.W.2d 222, 1976 Ky. LEXIS 19 ( Ky. 1976 ).

Exclusion of communicable diseases from definition of the word “injury” unless the nature of the employment increases the risk of contracting the disease, reflects a legislative policy that a particular affliction, even though commonly occurring among the general population, may nevertheless be found work-connected, hence compensable, when the nature of the victim’s occupation has increased his susceptibility to it. Haycraft v. Corhart Refractories Co., 544 S.W.2d 222, 1976 Ky. LEXIS 19 ( Ky. 1976 ).

This section distinguishes between injury and occupational disease although including the latter in the definition of the former. Peabody Coal Co. v. Burks, 568 S.W.2d 50, 1978 Ky. App. LEXIS 545 (Ky. Ct. App. 1978).

While injury and occupational disease are treated in the same manner by the statutes, they are entirely separate phenomena; traumatic injuries occur suddenly and usually result in abrupt cessation of work while occupational diseases progress gradually and it is customarily difficult to determine at what point work must cease; when traumatic injuries and ripening of occupational disease occur simultaneously, it is the traumatic injury which causes the claimant to cease work on any particular day. Peabody Coal Co. v. Burks, 568 S.W.2d 50, 1978 Ky. App. LEXIS 545 (Ky. Ct. App. 1978).

Where decedent’s work exposed him to a greater risk from pneumonia than the general public was exposed to for simple reason that the general public was not working on a loading dock with a viral infection in cold and damp December weather, and where the basic obligation and nature of his employment required him to work outside whether he really should have or not, the circumstances of decedent’s prior unemployment and the fact that he was a probationary employee would support an inference that decedent’s freedom of action for self-preservation was circumscribed by the conditions of his employment, and for these reasons it was appropriate to conclude that the risk of injury or death was increased by the nature of his job duties. Dealers Transport Co. v. Thompson, 593 S.W.2d 84, 1979 Ky. App. LEXIS 500 (Ky. Ct. App. 1979).

Medical testimony by two doctors from which it could be inferred that the conditions under which decedent worked could have lowered his resistance to pneumonia or could have caused a mild viral infection to become much more severe, or even fatal, constituted substantial evidence that a work-related injury occurred which produced, or substantially contributed to, decedent’s fatal pneumonia. Dealers Transport Co. v. Thompson, 593 S.W.2d 84, 1979 Ky. App. LEXIS 500 (Ky. Ct. App. 1979).

Subsection (1) of KRS 342.610 and subdivision (1) of this section plainly make a work-related harmful change in the human organism a compensable injury with the employer liable for payment of any compensation due. Land v. Burden, 626 S.W.2d 221, 1981 Ky. App. LEXIS 307 (Ky. Ct. App. 1981).

Angina pectoris is not a harmful change within the meaning of the statutory definition of “injury”; angina pectoris is only a symptomatic pain emanating from the underlying atherosclerotic heart disease. American Bakeries Co. v. Hatzell, 771 S.W.2d 333, 1989 Ky. LEXIS 53 ( Ky. 1989 ).

Former police officer’s workers’ compensation claim due to post-traumatic stress disorder involved a cumulative trauma injury and was compensable so long as (1) the initial traumatic event—an assault by a knife-wielding suspect—involved physical trauma, and (2) that event was a direct and proximate cause of a harmful change in the human organism, whether physical, psychological, psychiatric, or stress-related. Lexington-Fayette Urban County Gov't v. West, 52 S.W.3d 564, 2001 Ky. LEXIS 129 ( Ky. 2001 ).

A disability which results from the arousal of a prior, dormant condition by a work-related injury remains compensable. McNutt Constr. v. Scott, 40 S.W.3d 854, 2001 Ky. LEXIS 5 ( Ky. 2001 ).

Worker sustained a work-related trauma and harmful changes from the trauma were symptomatic on the date found by the administrative law judge; thus, the worker’s injury was on that date although the notice and limitations provisions were not triggered until the worker received her medical diagnosis later. Am. Printing House of the Blind v. Brown, 142 S.W.3d 145, 2004 Ky. LEXIS 191 ( Ky. 2004 ).

Where an administrative law judge erred in determining that an earlier manifestation date made a carrier on risk at that time, the first of the employer’s two (2) carriers, entirely responsible for an employee’s carpal tunnel injury, reversal of said order was warranted, as KRS 342.0011(1) required the ALJ to determine whether any trauma after said date caused a harmful change and exacerbated the employee’s injury. Brummitt v. Southeastern Ky. Rehab. Indus., 156 S.W.3d 276, 2005 Ky. LEXIS 49 ( Ky. 2005 ).

Since KRS 342.0011(1) requires that psychological, psychiatric, or stress-related claim must be a direct result of a physical injury, where an officer’s depressive and post-traumatic stress disorders, while work-related, were not a direct result of a physical injury, the officer’s workers’ compensation claim was properly denied. Kubajak v. Lexington-Fayette Urban County Gov't, 180 S.W.3d 454, 2005 Ky. LEXIS 387 ( Ky. 2005 ).

Since KRS 342.0011(1) requires that psychological, psychiatric, or stress-related claim must be a direct result of a physical injury. Where an officer’s depressive and post-traumatic stress disorders, while work-related, were not a direct result of a physical injury, the officer’s workers’ compensation claim was properly denied. Kubajak v. Lexington-Fayette Urban County Gov't, 180 S.W.3d 454, 2005 Ky. LEXIS 387 ( Ky. 2005 ).

Temporary total disability (TTD) benefits paid after a 2003 injury did not toll the limitations periods for the two injuries, and it was not error to fail to consider the tolling claim and to deny the claimant’s petition for reconsideration; an administrative law judge properly found that a 2002 incident caused the claimant’s permanent impairment rating, that KRS 342.185 barred a claim for the 2002 injury within the meaning of KRS 342.0011(1), and that a 2003 incident caused a temporary exacerbation of the 2002 injury, which resulted in a period of TTD and necessitated a period of medical treatment. Shelby Motor Co. v. Quire, 246 S.W.3d 443, 2007 Ky. LEXIS 205 ( Ky. 2007 ).

Because the repetitive motions required by a claimant’s job exacerbated her pre-existing condition, she sustained an injury under KRS 342.0011 ; further, because work performed within two (2) years before the filing date aggravated the condition, the claim was timely under KRS 342.185 and the claimant was entitled to medical treatment under KRS 342.020 . Univ. of Ky. Family Practice v. Leach, 237 S.W.3d 540, 2007 Ky. LEXIS 214 ( Ky. 2007 ).

Truck driver employee suffered an injury, as defined in KRS 342.0011(1), because the vehicular collision that fractured the employee’s left wrist and left scapula and caused numerous cuts and lacerations about his upper body was a traumatic event. Greene v. Paschall Truck Lines, 239 S.W.3d 94, 2007 Ky. App. LEXIS 416 (Ky. Ct. App. 2007).

Because other substantial evidence supported a finding of causation and that the claimant’s injury was work-related, via the testimony of the medical experts and the claimant herself, an administrative law judge properly found that the claimant’s rotator cuff surgery was a reasonable and necessary treatment for her injury. It was unnecessary to consider the ALJ’s authority to apply the presumption of work-relatedness even though the injury was unexplained. AK Steel Corp. v. Adkins, 253 S.W.3d 59, 2008 Ky. LEXIS 137 ( Ky. 2008 ).

Under KRS 342.0011(1) and the cases interpreting it, a permanent physical injury is not a prerequisite for a compensable psychological condition. Wal-Mart Stores, Inc. v. Smith, 277 S.W.3d 610, 2008 Ky. App. LEXIS 189 (Ky. Ct. App. 2008).

Workers’ Compensation Board correctly found that the Kentucky Employers Safety Association was responsible for an employee’s reasonable and necessary medical treatment under KRS 342.020(1), because contact with blood and other body fluids alone was sufficient to constitute a physical injury for the purposes of KRS 342.0011(1); the employee suffered a traumatic event when a patient’s blood splattered into his eye, and although the employee could not offer proof of a permanent impairment as a result of his contact with the patient’s blood, he was not precluded from an award of medical benefits. Ky. Emplrs. Safety Ass'n v. Lexington Diagnostic Ctr., 2008 Ky. App. LEXIS 285 (Ky. Ct. App. Aug. 29, 2008).

Since being splattered in the face and eye with foreign blood or other potentially infectious material constituted a traumatic event for the purposes of KRS 342.0011(1), and KRS 342.020(1) entitled the affected worker to reasonable and necessary medical treatment for the cure and relief from the effects of an injury, the workers’ compensation carrier was liable for reasonable and necessary medical treatment, including both the initial treatment and post-exposure prophylaxis. Ky. Emplrs. Safety Ass'n v. Lexington Diagnostic Ctr., 291 S.W.3d 683, 2009 Ky. LEXIS 80 ( Ky. 2009 ).

5. —Psychological Injury.

Award of income benefits for post traumatic stress disorder (PTSD) was proper as: (1) a psychologist and a psychiatrist testified that a workers’ compensation claimant suffered from permanent PTSD, (2) the claimant’s temporary back injury and permanent PTSD resulted from an explosion at work, and (3) under KRS 342.0011(1), a permanent physical injury was not a prerequisite to a compensable psychological injury. Wal-Mart Stores, Inc. v. Smith, 277 S.W.3d 610, 2008 Ky. App. LEXIS 189 (Ky. Ct. App. 2008).

Board had the authority to vacate an order that the Chief Administrative Law Judge (ALJ) entered that resolved a post-award medical fee dispute that the employer filed against the employee. Under KRS 342.285 , the Board could determine whether the ALJ acted in excess of his powers and that the order was not in conformity to the provisions of KRS 342.0011 et seq., and could vacate the order the ALJ entered in the dispute because, pursuant to KRS 342.230(8), the ALJ was tasked with scheduling the work of the administrative law judges and could not, as the ALJ did in the dispute, assign the matter to his own docket once the ALJ determined that the employer had made a prima facie case supporting its motion to reopen. Twin Res., LLC v. Workman, 394 S.W.3d 417, 2013 Ky. App. LEXIS 42 (Ky. Ct. App. 2013).

It is clear from the statutory language that an injury shall not include a psychological, psychiatric or stress-related change in the human organism unless it is a direct result of a physical injury; the statute, Lexington-Fayette Urban County Government v. West and Kubajak v. Lexington-Fayette Urban County Government collectively and conclusively mandate that post-traumatic stress disorder and related psychological disease processes and symptomatology are compensable only when they result from an event or series of events which physically traumatized the claimant. Ky. State Police v. McCray, 415 S.W.3d 103, 2013 Ky. App. LEXIS 154 (Ky. Ct. App. 2013).

Post-traumatic stress disorder as suffered by the officer was a psychological or stress-related change in the human organism, but by the officer’s own testimony, he suffered no physical injuries on the date of the shooting, and thus he was not entitled to benefits arising under the chapter absent a causal, physical injury. Ky. State Police v. McCray, 415 S.W.3d 103, 2013 Ky. App. LEXIS 154 (Ky. Ct. App. 2013).

Statute clearly limits compensability to those occurrences of post-traumatic stress disorder arising from physical injury to the claimant. Ky. State Police v. McCray, 415 S.W.3d 103, 2013 Ky. App. LEXIS 154 (Ky. Ct. App. 2013).

Officer bore the burden of proof to show that the evidence in his favor was so overwhelming that the finding to the contrary was unreasonable, but he could not meet that burden, as he acknowledged that he was not injured, and case law refuted the conclusion that the shooting was a work-related traumatic event sufficient to support a claim of post-traumatic stress disorder. Ky. State Police v. McCray, 415 S.W.3d 103, 2013 Ky. App. LEXIS 154 (Ky. Ct. App. 2013).

6. — Communicable Disease.

A communicable disease can be an injury within the meaning of the act; but, it does not follow that a communicable disease must always meet the occupational disease criteria in order to be covered. Dealers Transport Co. v. Thompson, 593 S.W.2d 84, 1979 Ky. App. LEXIS 500 (Ky. Ct. App. 1979).

The communicable disease coverage exception represents a legislative policy decision that the employer should not be held liable for disability caused by a communicable disease where the probability of contracting that disease is no greater for the worker because of his job situation than it is for him as a member of the general public; however, the statute does not rule out coverage for communicable diseases where the risk of contracting such disease is increased by the nature of the employment. Dealers Transport Co. v. Thompson, 593 S.W.2d 84, 1979 Ky. App. LEXIS 500 (Ky. Ct. App. 1979).

7. — Evidence.

Claimant introduced lay testimony that after his duties changed in May, 1977, he was at times exposed to coal dust and that he inhaled coal dust while teaching and performing his other duties as safety instructor at mine sites. While such lay testimony may prove that claimant was at times exposed to coal dust and that he inhaled coal dust, such evidence alone cannot, as a matter of law, prove that the exposure claimant received after May, 1977, was of such a magnitude and frequency as would have independently caused the disease for which he was claiming benefits. Such proof of causation requires competent medical evidence, and there was no medical evidence as to this particular fact. Dupree v. Kentucky Dep't of Mines & Minerals, 835 S.W.2d 887, 1992 Ky. LEXIS 56 ( Ky. 1992 ).

Although KRS 342.0011(1) clearly requires that there be objective medical findings of a harmful change in the human organism in order for that change to be compensable, it does not require causation to be proved by objective medical findings. Ky. River Enters. v. Elkins, 2002 Ky. App. LEXIS 1342 (Ky. Ct. App. June 28, 2002), aff'd in part and rev'd in part, 107 S.W.3d 206, 2003 Ky. LEXIS 147 ( Ky. 2003 ).

Where an ALJ held that an employee’s hearing loss was due to cumulative trauma, and that the claim was barred by limitations because the employee did not prove an impairment that was attributable to the two years before the claim was filed, the appellate court properly reversed the ALJ’s decision, as the evidence overwhelmingly demonstrated an increased hearing loss during the period from two years before the claim was filed and the date when the employee stopped working. Tanks v. Roark, 104 S.W.3d 753, 2003 Ky. LEXIS 17 ( Ky. 2003 ).

Expert witnesses’ testimony concerning the work-related harmful change in a workers’ compensation claimant’s condition complied with KRS 342.0011(1), where they identified an injury at a different place in the claimant’s spine than that which had been injured previously. Ky. River Enters. v. Elkins, 107 S.W.3d 206, 2003 Ky. LEXIS 147 ( Ky. 2003 ).

Employer claimed that a doctor’s testimony as to the cause of the worker’s injury was unreliable because it was based on personal observations and no valid medical studies demonstrated the causal relationship to which he testified; the doctor’s opinion was properly admitted, as Daubert did not apply to workers’ compensation proceedings, and the countervailing evidence was not so overwhelming as to render unreasonable the administrative law judge’s decision to rely on this testimony. Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615, 2004 Ky. LEXIS 35 ( Ky. 2004 ).

An administrative law judge’s determination that the claim was timely filed was supported by substantial evidence; medical causation had to be proved to a reasonable medical probability with expert medical testimony, but KRS 342.0011(1) did not require it to be proved with objective medical findings, and the opinion on which the ALJ relied was reasonable and well documented. Univ. of Ky. Family Practice v. Leach, 2006 Ky. App. LEXIS 389 (Ky. Ct. App. Dec. 22, 2006), aff'd, 237 S.W.3d 540, 2007 Ky. LEXIS 214 ( Ky. 2007 ).

Workers’ Compensation Board properly affirmed a finding that a coal handler’s rotator cuff injury was work-related, because an ALJ properly applied a rebuttable presumption that the injury arising from an unexplained fall was a compensable injury as defined by KRS 342.0011(1), and substantial evidence, including testimony by the handler and medical evidence, supported the decision. AK Steel Corp. v. Adkins, 2007 Ky. App. LEXIS 187 (Ky. Ct. App. June 22, 2007), aff'd, 253 S.W.3d 59, 2008 Ky. LEXIS 137 ( Ky. 2008 ).

8. Occupational Disease.

Allergic reaction cases are recognized as compensable occupational diseases but are distinguished from injury or other type occupational disease cases in that the burden of proof of a permanent impairment is greater. Golden v. Anaconda Wire & Cable Co., 556 S.W.2d 174, 1977 Ky. App. LEXIS 814 (Ky. Ct. App. 1977).

Occupational diseases are those diseases which are developed gradually and which are not sudden in their onset, and where the claimant’s sudden massive exposure to a toxic chemical was accidental and unforeseen, it was not a natural incident of his employment but was a sudden traumatic injury so that the employer was totally responsible for compensating the claimant for his resulting disability. Mobile Wash of Louisville, Inc. v. Lovitt, 565 S.W.2d 150, 1978 Ky. App. LEXIS 504 (Ky. Ct. App. 1978).

The Workmen’s (now Workers’) Compensation Board’s finding that claimant was permanently and occupationally disabled, as the result of an occupational disease (aplastic anemia) contracted in the course of employment, was supported by substantial evidence of probative value and would not be disturbed. Certain-Teed Products Corp. v. Mitchell, 574 S.W.2d 910, 1978 Ky. App. LEXIS 634 (Ky. Ct. App. 1978).

An occupational disease is for coverage purposes a special category of injury, and the distinction between the two becomes significant in determining whether the provisions of KRS 342.316 are to be triggered. Dealers Transport Co. v. Thompson, 593 S.W.2d 84, 1979 Ky. App. LEXIS 500 (Ky. Ct. App. 1979).

An occupational disease may be found if there is substantial evidence that either employment conditions specifically affected the employee in a manner resulting in contraction of disease or employment conditions generally can, to a reasonable medical probability, cause a particular disease or condition in a given class of workers. Dealers Transport Co. v. Thompson, 593 S.W.2d 84, 1979 Ky. App. LEXIS 500 (Ky. Ct. App. 1979).

The claim that a nurse contracted Acquired Immune Deficiency Syndrome when she stuck herself with a contaminated needle while treating patients with that disease was a claim for an occupational disease, rather than for an injury. Barren River District Health Dep't v. Hussey, 2000 Ky. App. LEXIS 39 (Ky. Ct. App. Apr. 14, 2000).

Employer’s contention that because the employee had not yet developed asbestosis he had to be denied medical benefits was rejected since the employee had calcified pleural plaque, which was a precursor to asbestosis; thus, the administrative law judge properly awarded medical benefits for the medical monitoring of his condition as a part of the treatment of an occupational disease. AK Steel Corp. v. Pollitt, 259 S.W.3d 505, 2008 Ky. App. LEXIS 227 (Ky. Ct. App. 2008).

While a tobacco company gave a decedent cigarettes and allowed him to smoke while working, it did not pay him to smoke; hence, contracting mesothelioma from smoking the cigarettes could not be said to bear any relationship to a risk connected with his employment, and, thus, to have flowed from his employment as a rational consequence under KRS 342.0011(3). McGuire v. Lorillard Tobacco Co., 2014 Ky. App. LEXIS 25 (Ky. Ct. App. Feb. 14, 2014), review denied, ordered not published, 2015 Ky. LEXIS 29 (Ky. Feb. 11, 2015).

8.5. — Natural Aging Process.

While the AMA Guidelines automatically exclude the effects of the natural aging process, the terms “dormant non-disabling condition” and “natural aging process” cannot be equated and held to be synonymous with one another, automatically precluding an award for an injury where the actual aging process may indeed be merely a peripheral issue. Ingersoll-Rand v. Edwards, 28 S.W.3d 867, 2000 Ky. App. LEXIS 102 (Ky. Ct. App. 2000).

The medical evidence indicated that the repetitive motion to which the claimant was exposed at work each day proximately caused his disability and did not require that a portion of his award be “carved out” for the natural aging process, notwithstanding that a physician initially indicated that he believed that the plaintiff’s hand condition was essentially an arthritic condition which was significantly related to the natural aging process, where the physician also stated specifically that the plaintiff’s degenerative arthritis was accelerated and exacerbated by his work with the employer and concluded that he had sustained a compensable work-related injury, none of which should be excluded as part of the natural aging process. Ingersoll-Rand v. Edwards, 28 S.W.3d 867, 2000 Ky. App. LEXIS 102 (Ky. Ct. App. 2000).

9. Work-Related or Arising Out of Employment.

Substantial evidence supported a finding that a workers' compensation claimant did not suffer a work-related “injury” because (1) one physician opined all symptoms pre-existed reported incidents, which did not alter the symptoms, (2) another found no objective evidence of work-related conditions or that the claimant's conditions could be due to cumulative trauma, (3) those physicians reviewed the claimant's medical records in detail and gave reasons for opinions, and (4) the claimant was not required to prove a structural change. Khani v. Alliance Chiropractic, 456 S.W.3d 802, 2015 Ky. LEXIS 76 ( Ky. 2015 ).

The change in the statutory language from former KRS 342.005 (now repealed) to the present section is one of form rather than substance, since “work-related” and “arising out of and in the course of employment” are synonymous terms. Armco Steel Corp. v. Lyons, 561 S.W.2d 676, 1978 Ky. App. LEXIS 471 (Ky. Ct. App. 1978).

Where employee suffered a heart attack while on the job but there was no evidence of causation other than presence at the job site, the Board’s finding of causation was clearly erroneous and failed to apply the correct standard to determine whether the attack was caused by work in the sense that it arose out of and occurred in the course of employment. Armco Steel Corp. v. Lyons, 561 S.W.2d 676, 1978 Ky. App. LEXIS 471 (Ky. Ct. App. 1978).

If the karate practice which resulted in claimant’s injury had been shown to be one of a series of similar incidents generally participated in, to the employer’s knowledge, by his employees, the Workmen’s (now Workers’) Compensation Board could find that it had become a custom of the claimant’s employment; this would have made the injury arise out of employment and thus it would be work-related. McCracken County Health Spa v. Henson, 568 S.W.2d 240, 1977 Ky. App. LEXIS 920 (Ky. Ct. App. 1977).

In order for an injury to arise out of employment, there must be a causal relationship between the employment and the injury and if the injury was brought about by reason of some other cause having no relation to the claimant’s employment it cannot be said to have arisen out of employment. McCracken County Health Spa v. Henson, 568 S.W.2d 240, 1977 Ky. App. LEXIS 920 (Ky. Ct. App. 1977).

When the injury-causing activity occurs on the employer’s premises during working hours, the injury is deemed work-related even though the activity was in no way connected with the employee’s work-duties and was strictly for personal purposes. Jackson v. Cowden Mfg. Co., 578 S.W.2d 259, 1978 Ky. App. LEXIS 670 (Ky. Ct. App. 1978).

“Work-related” and “arising out of and in the course of employment” are synonymous terms. Jackson v. Cowden Mfg. Co., 578 S.W.2d 259, 1978 Ky. App. LEXIS 670 (Ky. Ct. App. 1978).

For a disabling condition to be compensable, it must be work-related, and the mere fact that claimant suffered an attack of angina pectoris while at work, where there was no evidence that the condition’s underlying cause, atherosclerosis, was caused by his work situation, does not make it compensable as an occupational disease. Sowders v. Mason & Dixon Lines, Inc., 579 S.W.2d 380, 1979 Ky. App. LEXIS 388 (Ky. Ct. App. 1979).

Where the evidence showed that the claimant was subjected to extremes of temperature, smoke, and smog beyond that experienced by the public at large, that frequent contact with respiratory irritants was caused by the nature of her employment, that as a result of such exposure she had suffered repeated infections causing bronchiectasis, that she had been hospitalized three times and twice had portions of her right lung removed as a result of this disease, and that she was totally and permanently disabled, the Board did not err in finding the claimant suffered a work-related injury within the meaning of subdivision (1) of this section in the nature of an occupational disease. Louisville v. Laun, 580 S.W.2d 232, 1979 Ky. App. LEXIS 392 (Ky. Ct. App. 1979).

Where the claimant’s treating physician, who was the only doctor to examine the claimant before his death, found a causal relation between a work-related injury to the claimant’s ankle and his death from a pulmonary embolus caused by thrombophlebitis, and where the testimony of two other physicians did not contradict that of the treating physician, the Board’s finding that the injury did not cause the claimant’s death was clearly erroneous. Teague v. South Cent. Bell, 585 S.W.2d 425, 1979 Ky. App. LEXIS 440 (Ky. Ct. App. 1979).

Where there was no evidence that claimant’s angina was work-related as a matter of law, but clearly, it originated with his coronary artery disease which was not work-related, any occupational disability directly attributable to the pain would not be work-related and, therefore, could not form a basis for entitlement to benefits. Pierce v. Kentucky Galvanizing Co., 606 S.W.2d 165, 1980 Ky. App. LEXIS 358 (Ky. Ct. App. 1980).

Symptomatic pain which arises out of a nonwork-related functional impairment may not form the basis for an award of benefits. Pierce v. Kentucky Galvanizing Co., 606 S.W.2d 165, 1980 Ky. App. LEXIS 358 (Ky. Ct. App. 1980).

The exposure to sawdust that the claimant received while employed did not cause his disease in and of itself, regardless of any other exposure, as exposure to dust at a sawmill is not generally considered to be the cause of any occupational disease, and the medical testimony failed to establish such exposure as a cause of the claimant’s occupational disease. Mills v. Blake, 734 S.W.2d 494, 1987 Ky. App. LEXIS 515 (Ky. Ct. App. 1987).

Where claimant was injured while being transported by his foreman to a location designated by his employer to collect his pay, the Workers’ Compensation Board did not err in determining such to be work-related activity. Farris v. Huston Barger Masonry, Inc., 780 S.W.2d 611, 1989 Ky. LEXIS 102 ( Ky. 1989 ).

Administrative law judge’s denial of a claim arising from partial amputation of a worker’s foot due to a blister, was reversed by the Worker’s Compensation Board; although the administrative law judge found that the blister “conceivably” could have been caused by any pair of shoes worn by the claimant, the record was lacking any evidence that the blister was caused by any shoes other than those required by the employer during work hours. Beale v. Hammons, 804 S.W.2d 13, 1990 Ky. App. LEXIS 180 (Ky. Ct. App. 1990).

It is the development of the hypersensitivity resulting in a disabling allergic reaction that must be work-related; the inherent weakness itself does not have to be work-related. Champion v. Beale, 833 S.W.2d 799, 1992 Ky. LEXIS 157 ( Ky. 1992 ).

Claimant had been symptomatic with allergies for years preceding the medical recommendation to cease work, and her symptoms were triggered by substances contained in the environment generally. It was not shown that claimant’s teaching in a new gymnasium caused a sensitization to a particular allergen resulting in a permanently harmful change in her physical condition. To be compensable, an occupational disease must result from an exposure occasioned by the nature of the employment related to a risk connected with the employment. Even if the gym contained some of the offending irritants, subsection (3) of this section was not satisfied merely by showing that the worker was symptomatic in the specific place that she happened to work for this is not a recognizable risk of the teaching profession. Champion v. Beale, 833 S.W.2d 799, 1992 Ky. LEXIS 157 ( Ky. 1992 ).

The fact that claimant could not function in the work environment (a gymnasium) did not establish a causal nexus between the work and her disability. This was supported by the medical testimony that the triggering irritants could be found at work, at home, and in the environment generally. Where the worker’s sensitivities are wide-ranging and may be encountered in varying degrees in numerous environments, it is not enough that the worker is symptomatic at work, for this alone does not prove that the worker suffered an increased risk due to the employment. Champion v. Beale, 833 S.W.2d 799, 1992 Ky. LEXIS 157 ( Ky. 1992 ).

It must be shown that the injury complained of arose out of and in the course of employment in order to be compensable under this section and the burden is on the claimant to prove the causation of injury was work connected. Jones v. Newberg, 890 S.W.2d 284, 1994 Ky. LEXIS 149 ( Ky. 1994 ).

The Workers’ Compensation Board did not err in finding that a worker’s death did not arise from her employment where she was murdered at her workplace by a fellow worker afer she ended an extramarital affair with him. Carnes v. Tremco Mfg. Co., 30 S.W.3d 172, 2000 Ky. LEXIS 134 ( Ky. 2000 ).

Injury sustained by an employee at an employer-sponsored picnic was not work-related and was not compensable where the picnic was off of the employer’s premises, was outside of working hours, where attendance at the picnic was voluntary, and where the picnic did not provide a substantial and direct benefit to the employer. Smart v. Georgetown Cmty. Hosp., 2004 Ky. App. LEXIS 238 (Ky. Ct. App. Aug. 20, 2004), aff'd, 170 S.W.3d 370, 2005 Ky. LEXIS 226 ( Ky. 2005 ).

Although the employer rebutted the presumption that a claimant’s unexplained work-place fall was work-related by physicians’ opinions suggesting the claimant had an episode of presyncope, there remained a permissible inference that the fall was work-related. This inference, plus the administrative law judge’s finding that the fall was not due to presyncope, syncope, or loss of consciousness and was not idiopathic, constituted substantial evidence that the fall arose out of the claimant’s employment. Jefferson County Pub. Sch. v. Stephens, 208 S.W.3d 862, 2006 Ky. LEXIS 337 ( Ky. 2006 ).

Workers’ compensation board properly affirmed an award of benefits to an employee, as a school district failed to present evidence which showed that the employee’s fall was caused by preexisting medical conditions, and thus the district failed to rebut a presumption that the unexplained fall arose out of employment pursuant to KRS 342.0011 . Jefferson County Pub. Schs./Jefferson County Bd. of Educ. v. Stephens, 2006 Ky. App. LEXIS 105 (Ky. Ct. App. Apr. 7, 2006), aff'd, 208 S.W.3d 862, 2006 Ky. LEXIS 337 ( Ky. 2006 ).

Where a teacher was injured while attending an off-premises convention for the honor society that the employee sponsored, the injury was work-related because (1) the employee was paid while in attendance, (2) the employee had permission to attend, (3) sponsorship was encouraged, and (4) student participation in the club was a benefit to the school. Clark County Bd. of Educ. v. Jacobs, 2008 Ky. App. LEXIS 44 (Ky. Ct. App. Feb. 22, 2008), aff'd, 278 S.W.3d 140, 2009 Ky. LEXIS 36 ( Ky. 2009 ).

Because a workers’ compensation claimant attended a convention with approval, did not have to use vacation or sick time, and provided a service to the employer by advancing its responsibility to educate students and prepare them for adult life, the claimant’s injury at the convention was compensable under KRS 342.0011(1). Clark County Bd. of Educ. v. Jacobs, 278 S.W.3d 140, 2009 Ky. LEXIS 36 ( Ky. 2009 ).

Evidence that workers’ compensation claimant was “clumsy” and wearing high heels at time of workplace fall did not rebut presumption it was work-related under KRS 342.0011(1). There was no evidence of preexisting disease or physical weakness that caused her to fall and no evidence of conduct which would have barred her claim. Vacuum Depositing, Inc. v. Dever, 285 S.W.3d 730, 2009 Ky. LEXIS 150 ( Ky. 2009 ).

Fact that plaintiff’s decedent’s suicide occurred after she resigned was immaterial, since the supervisor’s allegedly harmful conduct occurred while decedent was employed with defendant employer, plaintiff’s claims against the employer were barred. Meade v. Arnold, 643 F. Supp. 2d 913, 2009 U.S. Dist. LEXIS 65032 (E.D. Ky. 2009 ).

Decedent’s suicide was the kind of injury falling within the bounds of workers’ compensation because it was a work-related traumatic event that arose out of and in the course of her employment. Meade v. Arnold, 643 F. Supp. 2d 913, 2009 U.S. Dist. LEXIS 65032 (E.D. Ky. 2009 ).

Employee’s injury, which occurred at an annual charity event held by the employer during her unpaid lunch break, was within the course and scope of her employment because the lunch break was included within the term “working hours” and the charity event was held on a regular, albeit annual, basis. Am. Greetings Corp. v. Bunch, 2010 Ky. App. LEXIS 51 (Ky. Ct. App. Feb. 26, 2010), aff'd, 331 S.W.3d 600, 2010 Ky. LEXIS 196 ( Ky. 2010 ).

10. —“Going and Coming” Rule.

As a general rule, once the employee of a contractor, whether independent or subcontractor, has crossed the threshold onto the private property upon which the job site is located where his employer is providing services is located, he should be considered exposed to the risks because of his employment and entitled to coverage under the “on premises” modification of the “going and coming” rule. However, the location or position where an accident occurs is just one factor to be considered in deciding whether a person who has not yet reported to work should be covered by the workers’ compensation law. Hayes v. Gibson Hart Co., 789 S.W.2d 775, 1990 Ky. LEXIS 53 ( Ky. 1990 ).

Where a decedent had been traveling all day making sales calls for his employer, his stopping to eat supper with his wife en route to his home was not a substantial deviation from his duties. Therefore, pursuant to KRS 342.0011(1), a fatal auto accident he was involved in after he left the restaurant occurred within the course of his employment and his wife was entitled to death benefits and unpaid medical benefits under KRS 342.750 . Abbott Labs. v. Smith, 205 S.W.3d 249, 2006 Ky. App. LEXIS 250 (Ky. Ct. App. 2006).

An airline employee riding in the cockpit jump-seat of another carrier on his was to work was within the “going and coming” rule and the Board erred in awarding benefits. The situation did not fall under the “employer convenience” doctrine since the jump-seat arrangement was for the benefit of the employee. Airtran Airways, Inc. v. Fortney, 2009 Ky. App. LEXIS 42 (Ky. Ct. App. Mar. 27, 2009), rev'd, 319 S.W.3d 325, 2010 Ky. LEXIS 147 ( Ky. 2010 ).

When a pilot was killed in a plane crash while traveling from his home city to the airline’s hub to report to work, the pilot’s death was work-related for purposes of the service to the employer exception to the going and coming rule under KRS 342.0011(1) because he was using the airline’s reduced-fair arrangement to fly to work. In denying the estate’s workers’ compensation claim, the administrative law judge (ALJ) erred by denying coverage based on a finding that the airline’s free or reduced-fare arrangement benefited the pilot but burdened the airline; the ALJ failed to consider whether the free or reduced-fare arrangement induced the pilot to accept or continue employment with the airplane. Fortney v. Airtran Airways, Inc., 319 S.W.3d 325, 2010 Ky. LEXIS 147 ( Ky. 2010 ).

Where an employee was injured in an accident while traveling from Kentucky to New York, his home, to transport horses, the trip qualified as a business trip because his employer acknowledged that, if the employee had not gone on the trip, he would have sent another employee in the horse van to watch the horses during the trip. Therefore, the employee’s trip was a business trip under the dual purpose doctrine since the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee’s personal journey home. Gaines Gentry Thoroughbreds/Fayette Farms v. Mandujano, 2011 Ky. App. LEXIS 78 (Ky. Ct. App. Apr. 29, 2011), aff'd, 366 S.W.3d 456, 2012 Ky. LEXIS 67 ( Ky. 2012 ).

Claimant was entitled to receive workers’ compensation benefits after she slipped and fell in snow that had accumulated outside of a building while she was walking into work after parking in space designated for employees; an employer had control over the area designated for employee parking, and an unreasonable path was not taken by the claimant. Jackson Purchase Med. Assocs. v. Crossett, 412 S.W.3d 170, 2013 Ky. LEXIS 380 ( Ky. 2013 ).

11. — Psychological, Psychiatric, or Stress-Related Change.

A psychological or psychiatric stress-related change in the human organism must originate with a work-related physical injury/incident in order to be characterized as an “injury.” Lexington-Fayette Urban County Gov't v. West, 2000 Ky. App. LEXIS 109 (Ky. Ct. App. Sept. 29, 2000), aff'd, 52 S.W.3d 564, 2001 Ky. LEXIS 129 ( Ky. 2001 ).

A work-related physical incident suffered by the claimant police officer was of so severe and sufficient proportion to serve as the predicate of her resulting psychological trauma so as to trigger the statute where the officer was assaulted after responding to a call that a man was screaming threats of violence in the middle of a residential street. Lexington-Fayette Urban County Gov't v. West, 2000 Ky. App. LEXIS 109 (Ky. Ct. App. Sept. 29, 2000), aff'd, 52 S.W.3d 564, 2001 Ky. LEXIS 129 ( Ky. 2001 ).

Employee should have been allowed to recover for work-related psychological trauma that the employee received when he performed CPR and first aid on an individual that the employee had just shot, after the other individual had pulled a gun, because the act of performing the CPR and the first aid was physically traumatic and had an impact on the employee’s mental condition. Richard E. Jacobs Group, Inc. v. White, 202 S.W.3d 24, 2006 Ky. LEXIS 160 ( Ky. 2006 ).

12. Disability.

Uninsured Employers' Fund (UEF) was not entitled to a dollar-for-dollar credit against permanent partial disability benefits as a set-off for temporary total disability benefits paid after February 27, 2005 because the correct operative date for such a credit was October 19, 2012; even though the claimant reached maximum medical improvement and could have returned to work in February, there was no order allowing UEF to discontinue the payment of benefits until October. Uninsured Emplr.' Fund v. Poplar Brook Dev., 2015 Ky. App. LEXIS 145 (Ky. Ct. App. Oct. 9, 2015), aff'd, 2016 Ky. Unpub. LEXIS 72 (Ky. Sept. 22, 2016).

Many of the cases under this heading were decided prior to the 1996 (1st Ex. Sess.) amendment which changed the definition of “disability” in subsection (11).

Where claimant had some preexisting back disability attributable to work-related and other causes and suffered an onset of severe pain after sitting in a chair most of the day at the bedside of his sick mother on April 11, 1974, the extent to which the claimant was actively disabled prior to that date is noncompensable but he is entitled to compensation for the remainder of his disability attributable to the present condition of his back. Haycraft v. Corhart Refractories Co., 544 S.W.2d 222, 1976 Ky. LEXIS 19 ( Ky. 1976 ).

If an employee has sustained no loss of immediate earning capacity but has incurred permanent injury, the Workmen’s (now Workers’) Compensation Board should make allowance for an appropriate degree of permanent partial disability on the basis of the probability of future impairment of earning capacity. Couliette v. International Harvester Co., 545 S.W.2d 936, 1976 Ky. LEXIS 143 ( Ky. 1976 ).

Where knee injury sustained by employee at work left him with a 5 percent permanent functional impairment to his body as a whole but, following a period of temporary disability, did not prevent him from continuing in his regular employment and did not support a finding that future impairment of earning capacity was probable, Workmen’s (now Workers’) Compensation Board was correct in declining to make an award for permanent partial disability. Couliette v. International Harvester Co., 545 S.W.2d 936, 1976 Ky. LEXIS 143 ( Ky. 1976 ).

Where the only industry of any import generally providing an ample wage in claimant’s county was coal mining, which the claimant was unable to do as a result of pneumoconiosis, but he could perform a part-time sedentary job driving a school bus a couple of hours per day, such work did not lessen his disability to labor in the coal industry and it was not error to award him permanent and total disability. Yocom v. Yates, 566 S.W.2d 796, 1978 Ky. App. LEXIS 533 (Ky. Ct. App. 1978).

Subdivision (9) (now (11)) of this section is a definition provision, whose purpose is to define disability, and the references to lost wages in that provision must be construed in light of the purpose of the section in which they appear and in such manner as to give the intended meaning to related sections, if possible. Transport Motor Express, Inc. v. Finn, 574 S.W.2d 277, 1978 Ky. LEXIS 419 ( Ky. 1978 ).

The difference between the wages paid prior to an injury and those paid after it is presumptive evidence of the decrease in wage earning capacity which may be rebutted by other evidence of the sort indicated by subsection (9) (now (11)) of this section. Transport Motor Express, Inc. v. Finn, 574 S.W.2d 277, 1978 Ky. LEXIS 419 ( Ky. 1978 ).

The Workers’ Compensation Board, in determining permanent partial disability, is not required to make a definite finding relative to the worker’s ability to perform a specific, prior occupation. Old Republic Ins. Co. v. McCarty, 599 S.W.2d 163, 1980 Ky. LEXIS 214 ( Ky. 1980 ).

Where there was no evidence other than the opinions from two doctors and testimony from a coworker that claimant complained about his back or was in any way disabled by prior surgery on back, evidence was not sufficient to warrant a finding that claimant had an active disability within the meaning of subdivision (11) of this section at the time of his hiring. Allied Corp. v. Hornsby, 661 S.W.2d 480, 1983 Ky. App. LEXIS 350 (Ky. Ct. App. 1983).

Disability means occupational disability as distinguished from functional impairment. Cook v. Paducah Recapping Service, 694 S.W.2d 684, 1985 Ky. LEXIS 230 ( Ky. 1985 ).

For claimant to recover disability benefits for an occupational disease, the Workers’ Compensation Board is required to find, among other things, that he has an occupational disease as defined in subdivision (2) of this section, and the place of employment where he received his last “injurious exposure” to the disease. Thus, where the Board did not make these findings, either explicitly or implicitly, in its original opinion, and found only that the claimant did not contract pneumoconiosis while in the employ of his last employer, and it did not make a finding as to whether the movant had pneumoconiosis, whether he was occupationally disabled by it, or whether he was injuriously exposed to the disease while in the employ of his last employer, the Circuit Court remanded the case to the Board to make a specific finding on these issues. Stewart v. Lawson, 689 S.W.2d 21, 1985 Ky. LEXIS 222 ( Ky. 1985 ), overruled, Davis v. Island Creek Coal Co., 969 S.W.2d 712, 1998 Ky. LEXIS 99 ( Ky. 1998 ).

In cases of pneumoconiosis disability has been defined as occurring when circumstances exist from which a workman realizes or reasonably should realize his capacity to perform work is impaired. So long as he is able to carry on his duties, though he may suffer while doing so, he is not yet disabled within the meaning of the statute requiring timely notice of disability. Howell v. Shelcha Coal Co., 834 S.W.2d 693, 1992 Ky. App. LEXIS 190 (Ky. Ct. App. 1992).

Legislative amendments of 1994 to KRS 342.730(1)(b) reiterate that the functional impairment rating is controlling when the employee returns to work at a wage equal to or greater than the employee’s pre-injury wage unless a greater percentage of disability can be established under this section which looks to, among other criteria, the decrease in wage earning capacity due to injury or loss of ability to compete to obtain the type of work the employee is customarily able to do. When this criteria is met, an award for benefits for an occupational disability greater then the claimant’s established functional impairment is allowed; however, claimant failed to show that he was entitled to such benefits where he was earning the same wage at the time of maximum medical improvement and at the time of the injury, so it was determined that there was no decrease in his wage earning capacity. City of Paintsville v. Ratliff, 889 S.W.2d 784, 1994 Ky. LEXIS 136 ( Ky. 1994 ).

Occupational disability due to injury, under this section, is measured by the loss of the worker’s earning capacity caused by the injury and requires an individualized determination of a worker’s occupational disability as a result of a work-related injury. It does not establish a uniform benchmark of occupational ability against which injured workers are measured. Transportation Cabinet v. Blackburn, 890 S.W.2d 627, 1994 Ky. LEXIS 131 ( Ky. 1994 ).

Because the disability retirement benefit was part of claimant’s overall employment compensation package with his employer as provided by claimant’s collective bargaining agreement through his union and was not a result of the employer’s generosity or largess in providing the disability benefit, there was no substantial evidence to support the ALJ’s award of a credit to the employer for payments previously made to claimant under the disability retirement plan. GAF Corp. v. Barnes, 906 S.W.2d 353, 1995 Ky. LEXIS 110 ( Ky. 1995 ).

Whether an employer is entitled to a credit against its workers’ compensation liability for benefits paid pursuant to a disability benefit plan depends upon all relevant factors including unilateral funding of the plan by the employer, the duration and conditions of coverage under the plan, and whether the plan contains its own internal off-set provisions. The fundamental question is whether the plan fulfills the same purpose as workers’ compensation, if so, then a credit is proper in order to avoid a duplication of benefits. GAF Corp. v. Barnes, 906 S.W.2d 353, 1995 Ky. LEXIS 110 ( Ky. 1995 ).

Administrative law judge’s findings, based on claimant’s age, education, occupation, experience, transferable skills, and physical condition, although not greatly detailed, were adequate to support his conclusion that claimant had suffered no additional occupational disability. Mosely v. Ford Motor Co., 968 S.W.2d 675, 1998 Ky. App. LEXIS 39 (Ky. Ct. App. 1998).

An individualized determination of what a worker is and is not able to do after recovering from a work injury is required by the statute; such determination necessarily includes a consideration of factors such as the worker’s post-injury physical, emotional, intellectual, and vocational status and how those factors interact and also includes a consideration of the likelihood that the particular worker would be able to find work consistently under normal employment conditions, which is affected by factors such as whether the individual will be able to work dependably and whether the worker’s physical restrictions will interfere with vocational capabilities. Ira A. Watson Dep't Store v. Hamilton, 34 S.W.3d 48, 2000 Ky. LEXIS 131 ( Ky. 2000 ).

A finding of either permanent partial disability or permanent total disability requires proof that the employee has a permanent disability rating, and a permanent disability rating requires a permanent impairment rating, which in turn requires evidence of a rating of whole body impairment as determined by the American Medical Association Guides. Shaffer v. Lourdes Hosp., 2000 Ky. App. LEXIS 145 (Ky. Ct. App. Dec. 1, 2000).

Under KRS § 342.0011(11)(b), 342.011(35), & 342.730(1)(b), it appears that permanent partial disability is solely a function of the American Medical Association, Guides to the Evaluation of Permanent Impairment, the administrative law judge (ALJ) is required to determine whether a partially disabled worker has any measurable impairment under those guides prior to the subject injury, and if the ALJ so finds, the definitions in the statutes listed above require a finding of a non-compensable pre-existing active disability. Westerfield v. Diversified Health Care, Inc., 2003 Ky. App. LEXIS 217 (Ky. Ct. App. Aug. 29, 2003), aff'd, 2004 Ky. Unpub. LEXIS 180 (Ky. Dec. 16, 2004).

In order to be entitled to temporary total disability (TTD) benefits, a claimant must not have reached maximum medical improvement (MMI) and not have improved enough to return to work; once an administrative law judge determined that a worker had reached MMI, she ended her eligibility for TTD benefits. Magellan Behavioral Health v. Helms, 140 S.W.3d 579, 2004 Ky. App. LEXIS 68 (Ky. Ct. App. 2004).

When a claimant sought total disability benefits due to a head injury, the evidence did not compel a finding that his injury warranted a disability rating based on impairments under chapters of the American Medical Association Guides to the Evaluation of Permanent Impairment regarding both neurological and mental disorders, and the claimant was properly found entitled to partial disability benefits. Lanter v. Ky. State Police, 171 S.W.3d 45, 2005 Ky. LEXIS 228 ( Ky. 2005 ).

Chief ALJ’s ruling that a workers’ compensation benefit claimant suffered from a total permanent disability under KRS 342.0011(11)(c) due to a back injury was supported by substantial evidence that included the claimant’s own credible testimony and evidence provided by three (3) doctors; thus, the Workers’ Compensation Board’s reversal of that decision was improper. Carnes v. Parton Bros. Contr., Inc., 171 S.W.3d 60, 2005 Ky. App. LEXIS 183 (Ky. Ct. App. 2005).

Because KRS 342.125(1)(d) requires only a “worsening of impairment,” a worker seeking a reopening of a prior award was not required to prove a greater permanent impairment rating in order to receive permanent total disability benefits; KRS 342.730(1)(a) and KRS 342.0011(11)(c) required a claimant who was partially disabled at the time of the initial award and totally disabled at reopening to show only that a worsening of impairment due to the injury was permanent and caused the claimant to be totally disabled. Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 2006 Ky. LEXIS 297 ( Ky. 2006 ).

Employee did not meet his burden of proof under KRS 342.0011(11)(b) to show permanent partial disaiblity because the reports from three doctors who examined and treated the employee supported the finding by an administrative law judge that the employee was not functionally impaired due to a work-related collision. Furthermore, the disability rating later assessed by another doctor was not so overwhelming that no reasonable person could have reached the same conclusion drawn by the ALJ. Greene v. Paschall Truck Lines, 239 S.W.3d 94, 2007 Ky. App. LEXIS 416 (Ky. Ct. App. 2007).

13. —Total.

The fact that a worker may be willing and able to work at some occupation does not necessarily preclude his being totally disabled for purposes of workers’ compensation. Wells v. Jones, 662 S.W.2d 849, 1983 Ky. App. LEXIS 312 (Ky. Ct. App. 1983).

The admission that, in order to receive the unemployment compensation, claimant signed a statement that he was “ready, willing and able to go to work” did not constitute an admission that he was not permanently and totally disabled during the time he received such compensation. Wells v. Jones, 662 S.W.2d 849, 1983 Ky. App. LEXIS 312 (Ky. Ct. App. 1983).

When regular employment is not available in the kind of work that a claimant is customarily able to do in the area where he lives, such claimant may be found totally disabled under subdivision (11) of this section; thus, where policeman shot in the line of duty became a quadriplegic and returned to work as a police radio dispatcher but would not be rehired for his former job, the Workers’ Compensation Board was correct in finding that in the absence of compassionate treatment by his employer, the claimant was entirely precluded from successful competition for employment in the job market and had sustained an occupational disability of 100 percent. Gunderson v. Ashland, 701 S.W.2d 135, 1985 Ky. LEXIS 300 ( Ky. 1985 ).

A return to work does not preclude a previously injured worker from continuing to be considered permanently and totally occupationally disabled. Marcum v. Wolf Creek Collieries, 850 S.W.2d 48, 1993 Ky. LEXIS 68 ( Ky. 1993 ).

Temporary total disability (TTD) benefits are payable until the medical evidence establishes the recovery process, including any treatment reasonably rendered in an effort to improve the claimant’s condition, is over, or the underlying condition has stabilized such that the claimant is capable of returning to his job, or some other employment, of which he is capable, which is available in the local labor market. W.L. Harper Constr. Co. v. Baker, 858 S.W.2d 202, 1993 Ky. App. LEXIS 87 (Ky. Ct. App. 1993).

The claimant was entitled to temporary total disability benefits for the period after he was released to return to work under certain benefits and before he was released to return to work with no restrictions where (1) the claimant was released to return to “modified duty” work at his regular hours, provided that he did not lift more than 10 pounds, did not kneel, did not bend or squat, and did not climb stairs; (2) the employer testified that he did not have any light duty jobs available for the claimant; (3) it was clear that one would have to kneel, squat, and bend over in order to perform the type of work in which the claimant had engaged; and (4) the claimant’s adult work history was in manual labor jobs, meaning that it would have been very difficult for him to return to any type of gainful employment. Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 2000 Ky. App. LEXIS 32 (Ky. Ct. App. 2000).

The statute does not require a termination of temporary total disability benefits as soon as a worker is released to perform any type of work; it would not be reasonable to terminate the benefits of a worker when he is released to perform minimal work but not the type that is customary or that he was performing at the time of his injury. Central Ky. Steel v. Wise, 19 S.W.3d 657, 2000 Ky. LEXIS 73 ( Ky. 2000 ).

KRS 342.730 5 does not limit hearing loss disability benefits to an award pursuant to KRS 342.730 (1)(b); KRS 342.730(1)(a) merely provides that a combination of a hearing loss cannot add to another injury claim to create a total disability under KRS 342.730 and a partial disability under KRS 342.7305 . Therefore, an employee’s claim for total disability based on an occupational hearing loss was properly granted. Webster County Coal Corp. v. Lee, 125 S.W.3d 310, 2003 Ky. App. LEXIS 212 (Ky. Ct. App. 2003).

As the administrative law judge (ALJ) was entitled to choose which portion of which expert’s testimony to rely upon, the evidence had been sufficient to support the ALJ’s finding that a claimant’s physical and psychiatric injuries were caused by her industrial accident and totally disabled her. Copar, Inc. v. Rogers, 127 S.W.3d 554, 2003 Ky. LEXIS 259 ( Ky. 2003 ).

Since the worker met the definition of temporary total disability where he was only offered weekend work, he was entitled to benefits under KRS 342.730(1). Williams v. FEI Installation, 2005 Ky. App. LEXIS 280 (Ky. Ct. App. Dec. 22, 2005), aff'd, 214 S.W.3d 313, 2007 Ky. LEXIS 23 ( Ky. 2007 ).

Overwhelming evidence, including a light-duty work restriction that required minimal use of his right hand, indicated that an employee’s injury prevented him from performing his customary work as a foreman. It was thus unreasonable to conclude that his customary work came within his restrictions and that he failed to meet his burden of proof under KRS 342.0011(11)(a). FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 2007 Ky. LEXIS 23 ( Ky. 2007 ).

Because KRS 342.0011(11)(a) authorized temporary total disability (TTD) benefits if a worker had not reached maximum medical improvement (MMI) and has not reached a level of improvement that would permit a return to his customary employment, since it was undisputed that claimant’s foot injury rendered him temporarily totally disabled and that his condition failed to improve to the point that he could perform his customary work, the administrative law judge erred by failing to determine the date of MMI before addressing the employer’s entitlement to a credit for the overpayment of TTD. Sidney Coal Co. v. Huffman, 233 S.W.3d 710, 2007 Ky. LEXIS 189 ( Ky. 2007 ).

Because a worker’s entitlement to long-term disability benefits had little or no bearing on the worker’s entitlement to permanent total disability benefits, and because a judicial admission by the employer was not conclusive evidence of permanent total disability under KRS 342.0011 , the evidence did not compel such a finding. Ridener v. South Ky Rural Elec. Coop. Corp., 2009 Ky. App. LEXIS 9 (Ky. Ct. App. Jan. 23, 2009), aff'd, 2009 Ky. Unpub. LEXIS 137 (Ky. Oct. 29, 2009).

Proper application of KRS 342.0011(11)(a) compelled an award of ongoing temporary total disability benefits during abatement of an injured employee’s claim where the adjudicated factual findings rendered in an administrative law judge’s interlocutory opinion established that the employee had not reached maximum medical improvement, required further medical treatment, did not qualify for an impairment rating pending further improvement, and could not return to the type of mechanic work the employee performed when injured or to other customary work. Bowerman v. Black Equip. Co., 297 S.W.3d 858, 2009 Ky. App. LEXIS 189 (Ky. Ct. App. 2009).

An award of temporary total disability payments pursuant to KRS 342.0011(11)(a) was proper, as a report following an independent medical examination conducted by a doctor conveyed the doctor’s opinion that the claimant had suffered 44% permanent impairment to the whole body; the doctor did not expressly state that the claimant had achieved maximum medical improvement, but it was implicit in the doctor’s report. Abel Verdon Constr. v. Rivera, 2010 Ky. App. LEXIS 194 (Ky. Ct. App. Oct. 15, 2010), aff'd, 348 S.W.3d 749, 2011 Ky. LEXIS 116 ( Ky. 2011 ).

There was substantial evidence to support the administrative law judge’s award of permanent total disability benefits because two doctors opined that the employee had significant restrictions on walking and standing, using ladders, scaffolding, or stairs, and lifting and carrying heavy loads over long distances and could not return to his employment; both doctors assigned permanent impairment ratings. Ky. Employers' Mut. Ins. v. Burnett, 432 S.W.3d 733, 2014 Ky. App. LEXIS 82 (Ky. Ct. App. 2014).

Administrative law judge (ALJ) improperly analyzed whether the claimant was totally disabled under Ky. Rev. Stat. Ann. § 342.0011(11)(c) where the ALJ never found which impairment rating the claimant actually had, failed to set forth what factors were considered in determining that the claimant was unable to perform any type of work, and failed to delineate which, if any, of the claimant's restrictions were related to his knee injury and which were related to his preexisting antiphospholipid syndrome. City of Ashland v. Stumbo, 461 S.W.3d 392, 2015 Ky. LEXIS 1623 ( Ky. 2015 ).

14. — Post-injury.

Post-injury disabilities cannot be added to work injuries so as to enhance the percentage of disability and consequent duration of payments under the Workers' Compensation Act. Johnson v. Scotts Branch Coal Co., 754 S.W.2d 555, 1988 Ky. App. LEXIS 97 (Ky. Ct. App. 1988).

Although the Legislature used the terms “proximately causes” and “direct result” in KRS 342.0011(1), those terms do not denote different types of causal relationships because the terms “proximate cause” and “direct cause” are synonymous; the Legislature’s intent was to require that a mental injury be directly and, therefore, proximately caused by physical rather than mental trauma. Coleman v. Emily Enters., 58 S.W.3d 459, 2001 Ky. LEXIS 180 ( Ky. 2001 ).

Court of Appeals erred in reversing workers’ compensation board’s affirmation of ALJ’s finding that claimant’s mental condition was a direct result of his work-related back injury; the condition was within definition of injury pursuant to KRS 342.0011(1). Coleman v. Emily Enters., 58 S.W.3d 459, 2001 Ky. LEXIS 180 ( Ky. 2001 ).

15. Temporary total disability benefits.

Employee was properly denied temporary total disability benefits during a period of light-duty work when the employee did not perform the employee's customary work because (1) the employee's inability to do the employee's customary work did not automatically entitle the employee to such benefits, and (2) the evidence did not compel a contrary finding. Livingood v. Transfreight, LLC, 467 S.W.3d 249, 2015 Ky. LEXIS 1760 ( Ky. 2015 ).

Court of appeals erred in reversing an administrate law judge's (ALJ) decision because there was ample evidence of substance to support the ALJ's denial of an employee's request for additional temporary total disability (TTD) benefits; the employee's physician released her to perform light and sedentary work, which the employer provided for her, and the employee did not produce any evidence that the job required significant additional training or that it was beyond her intellectual abilities. Trane Commer. Sys. v. Tipton, 481 S.W.3d 800, 2016 Ky. LEXIS 7 ( Ky. 2016 ).

Purpose for awarding income benefits such as temporary total disability is to compensate workers for income lost due to injury, thereby enabling them to provide the necessities of life for themselves and their dependents, and once an injured employee reaches maximum medical improvement (MMI) he or she is no longer entitled to benefits; thus, the following only applies to employees who have not reached MMI but who reach a level of improvement sufficient to permit a return to employment. Trane Commer. Sys. v. Tipton, 481 S.W.3d 800, 2016 Ky. LEXIS 7 ( Ky. 2016 ).

It is not reasonable, and it does not further the purpose for paying income benefits, to pay temporary total disability (TTD) benefits to an injured employee who has returned to employment simply because the work differs from what she performed at the time of injury; therefore, absent extraordinary circumstances, an award of TTD benefits is inappropriate if an injured employee has been released to return to customary employment, and the employee has actually returned to employment. Trane Commer. Sys. v. Tipton, 481 S.W.3d 800, 2016 Ky. LEXIS 7 ( Ky. 2016 ).

In making any temporary total disability (TTD) benefits award, an administrative law must take into consideration the purpose for paying income benefits and set forth specific evidence-based reasons why an award of TTD benefits in addition to the employee's wages would forward that purpose. Trane Commer. Sys. v. Tipton, 481 S.W.3d 800, 2016 Ky. LEXIS 7 ( Ky. 2016 ).

15.5. Compensation.

The minimum workers’ compensation limitation on weekly income benefits applies not only to cases of total disability but also to benefits to be paid for partial disability. Apache Coal Co. v. Fuller, 541 S.W.2d 933, 1976 Ky. LEXIS 28 ( Ky. 1976 ).

The enactment of this section did not modify the proposition that the Board and courts should look to the impairment of the injured worker’s ability to do some gainful work in the future or, putting it another way, his overall earning capacity as viewed in terms of future prospects, and this is the guidepost in spite of the fact that the usual work may be continued. Yocom v. Yates, 566 S.W.2d 796, 1978 Ky. App. LEXIS 533 (Ky. Ct. App. 1978).

Where police officer suffered fractured leg within the scope of employment in 1973, received temporary total disability benefits for one month, then was paid medical and related expenses by his employer from April 1973 to August 1975, his claim for workers’ compensation filed in April 1977 was not barred by the two-year statute of limitations under KRS 342.185 since the medical and related expenses are “compensation” under subsection (13) of this section (formerly subsection (12)) and thus payments of compensation under KRS 342.185 toll the running of the limitations period. Hetteberg v. Newport, 616 S.W.2d 35, 1981 Ky. LEXIS 242 ( Ky. 1981 ) (decision prior to 1980 amendment).

The Legislature did not intend the definition of compensation in subdivision (14) of this section to be applied indiscriminately wherever the word appears in the workers’ compensation law, but only in those instances where the context of a particular statute would make the use of that definition reasonable. Claude N. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 1983 Ky. App. LEXIS 304 (Ky. Ct. App. 1983).

Since KRS 342.020 is a more specific statute than the statute which sets forth the general definition of the word “compensation” (subdivision (14) of this section), the provisions of KRS 342.020 clearly must be deemed to govern the issue of the Special Fund’s liability for medical expenses. Claude N. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 1983 Ky. App. LEXIS 304 (Ky. Ct. App. 1983).

The word “compensation” cannot automatically be deemed to include both medical and income benefits whenever it appears in the workers’ compensation law, rather, its meaning must be determined by the context in which it appears in a given statute; in the context of KRS 342.120 , the word “compensation” must be construed as referring only to income benefits. Claude N. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 1983 Ky. App. LEXIS 304 (Ky. Ct. App. 1983).

Though the 1982 amendment to KRS 342.185 deleted the word “compensation” and inserted in lieu thereof the phrase “income benefits”, it did not take the word “compensation” out of the rest of the statutes. The word “compensation” is still defined to mean “all payments made under the provisions of this chapter representing the sum of income benefits and medical and related benefits.” Purdy v. Palmore, 789 S.W.2d 12, 1990 Ky. LEXIS 41 ( Ky. 1990 ).

Even if awards of retraining incentive benefits (RIB) are not considered to be awards of disability compensation or income benefits, they nevertheless fall within the definition of “compensation” awards, for purposes of the medical benefits statute, as other services provided in KRS Chapter 342; it follows, therefore, that an employer which is obligated to pay RIB benefits is also obligated to pay, in accordance with KRS 342.020(1), for medical treatment reasonably required either at the time of the award or in the future even if it is true that at the time of the award no medical treatment was required or even available to cure, relieve or treat the effects of the claimant’s occupational disease. Peabody Coal Co. v. Hicks, 824 S.W.2d 411, 1992 Ky. LEXIS 112 ( Ky. 1992 ).

When the deceased employee’s estate received benefits pursuant to KRS 342.750(6), the amount received by the estate was properly increased by 30 percent, pursuant to KRS 342.165(1), when there was evidence that the employee’s death was caused by the employer’s safety violations. Payments under KRS 342.750(6) could be considered as “compensation,” as contemplated by KRS 342.0011(14) for purposes of applying the statutory increase under KRS 342.165(1). Realty Improvement Co. v. Raley, 194 S.W.3d 818, 2006 Ky. LEXIS 158 ( Ky. 2006 ).

KRS ch. 342 provided two forms of compensation, income benefits and medical benefits, and an award may include either type of compensation or both; although the court did not determine that a compensable injury might be temporary and warrant only temporary medical benefits until 2001, medical benefits had always been awarded “during disability,” and had the Legislature intended to limit the time for seeking temporary total disability benefits to the period that income benefits were awarded, it would have stated so explicitly. Radco Asbestos Specialists, Inc. v. Lyons, 295 S.W.3d 75, 2009 Ky. LEXIS 187 ( Ky. 2009 ).

16. — Offsets.

Employer was not allowed credit against its past due workers’ compensation liability for payments already made to claimant pursuant to its disability pension plan, and employer was not entitled to a prospective credit, overruling Beth-Elkhorn v. Lucas, supra and Conkwright v. Rockwell International, supra. Williams v. Eastern Coal Corp., 952 S.W.2d 696, 1997 Ky. LEXIS 108 ( Ky. 1997 ).

Where a claimant was awarded permanent total disability benefits, an employer was not entitled to credit for post-injury wages, because the claimant’s wages were “bona fide” since they were paid ostensibly for labor and the evidence did not permit a reasonable finding that the employer intended to pay them in lieu of workers’ compensation benefits. Millersburg Military Inst. v. Puckett, 260 S.W.3d 339, 2008 Ky. LEXIS 102 ( Ky. 2008 ).

17. Agriculture.

Workers' Compensation Board erred in finding that the agriculture exemption did not apply to a claimant where it was undisputed that he was tasked with hauling the harvested crops and unloading them at the farm's storage silos, testimony established that the farm only harvested and stored its own crops, the farm's sole source of income was from the eventual sale of those crops at market, and thus, the claimant's activities fit within the statutory definition of agriculture as set forth in Ky. Rev. Stat. Ann. § 342.0011(18). Homestead Family Farm v. Perry, 506 S.W.3d 325, 2016 Ky. App. LEXIS 193 (Ky. Ct. App. 2016).

The usual practice of animal husbandry is included within the general term “agriculture.” Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44, 1978 Ky. App. LEXIS 678 (Ky. Ct. App. 1978).

Operator of farm on which tobacco, hay, cattle and thoroughbred yearlings were raised but on which 73 percent of the gross receipts came from boarding mares owned by others was excluded from the operation of the Workers’ Compensation Law since such operation was agriculture. Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44, 1978 Ky. App. LEXIS 678 (Ky. Ct. App. 1978).

The agricultural exemption to the Workers’ Compensation Act in KRS 342.650 and this section includes the conditioning and exercising of racehorses which have been released to the track, but have returned to the farm for rehabilitation from injury. Michael v. Cobos, 744 S.W.2d 419, 1987 Ky. LEXIS 265 ( Ky. 1987 ).

Because sale of quail to hunting preserves to be hunted was an agricultural use under subsection (18) of this section, quail farm which sold the birds was entitled to the agricultural exemption of KRS 342.630(1) and 342.650(5); case involving worker injured at farm was remanded back to Workers’ Compensation Board with directions to dismiss. Stidham v. Duncan, 931 S.W.2d 463, 1996 Ky. App. LEXIS 140 (Ky. Ct. App. 1996).

The work the injured employee was performing was logging, which was not “agriculture” as that term was defined by KRS 342.0011(18). The logging performed by the employee was not incident to farming; although it occurred on the employer’s farm, the logging was not connected to the day to day operations of the farm itself as the cut timber was commercially sold by the employer for profit. Commonwealth v. Gussler, 278 S.W.3d 153, 2008 Ky. App. LEXIS 251 (Ky. Ct. App. 2008).

18. Recreational Activity.

Employer control is a factor in determining whether a recreational activity is work-related; even though a recreational activity is not an integral part of an employee’s job, the employer may expand the scope of employment to include the recreational activity by expressly or impliedly requiring the employee to participate. Jackson v. Cowden Mfg. Co., 578 S.W.2d 259, 1978 Ky. App. LEXIS 670 (Ky. Ct. App. 1978).

Where employer paid league entry fee and supplied uniforms to members of industrial league basketball team, but did not expressly or impliedly require employees to participate and exercised no control over team activities, and where the players paid for a practice gym, and supplied the athletic equipment the very limited publicity the company received by sponsoring such a team and the fact that employee morale might have improved did not establish a sufficient connection between employment and an injury suffered in a basketball game to make such injury “work-related.” Jackson v. Cowden Mfg. Co., 578 S.W.2d 259, 1978 Ky. App. LEXIS 670 (Ky. Ct. App. 1978).

19. Compensable Employment.

“Training” and “control” are sufficiently dissimilar from the advantages set out in subsection (17) of this section as to remove individuals receiving such aid from the definition of a compensable employee or apprentice. Salvation Army v. Mathews, 847 S.W.2d 751, 1993 Ky. App. LEXIS 19 (Ky. Ct. App. 1993).

Under KRS 342.0011(17) and KRS 342.140(6), the term “wages” takes into account items that are reported on the employee’s income tax returns. Regardless of whether an individual is paid in cash or in kind, the value of the compensation must be considered when determining whether the individual had received “aid or sustenance only” in return for work, and, likewise, if an individual is compensated, it is immaterial under KRS 342.650(3) that the individual or the organization for which he works considers him to be a “volunteer.” Anderson v. Homeless & Housing COA, 135 S.W.3d 405, 2004 Ky. LEXIS 123 ( Ky. 2004 ).

20. — Student Trainees.

Workers’ compensation benefits are not available to unremunerated student trainees. Salvation Army v. Mathews, 847 S.W.2d 751, 1993 Ky. App. LEXIS 19 (Ky. Ct. App. 1993).

21. Claims.

After claim for workers’ compensation based on injuries to claimant’s right wrist, thumb and shoulder caused by slipping and falling was rejected, claimant could present second claim alleging that she had developed carpal tunnel syndrome in her wrist and hand as a result of overusing her left arm while compensating for the injury to her right arm; the second claim was not barred by res adjudicata, since her claim of carpal tunnel syndrome was not fully litigated in the first proceeding and, moreover, such a decision was not essential to the decision of the first claim. Woodbridge Inoac v. Downs, 864 S.W.2d 306, 1993 Ky. App. LEXIS 138 (Ky. Ct. App. 1993).

Since CR 18.01 provides that a party “may” rather than “shall” join independent actions in one claim for relief, claimant was not required to join two workers’ compensation claims where proceedings on first claim did not decide the issue of the second claim and such decision was not essential to the final decision of the first proceedings. Woodbridge Inoac v. Downs, 864 S.W.2d 306, 1993 Ky. App. LEXIS 138 (Ky. Ct. App. 1993).

Workers’ compensation claims must rest on a particular ailment, and a worker may present claims one ailment at a time, one after another, if she wishes. Woodbridge Inoac v. Downs, 864 S.W.2d 306, 1993 Ky. App. LEXIS 138 (Ky. Ct. App. 1993).

Where claimant’s condition was either due to cigarette smoking or to exposure to coal dust, and where the fact-finder was required to determine causation under this section and that issue was not stipulated but was fully litigated before the Administrative Law Judge (ALJ) and therefore no party suffered prejudice by the failure to list it as a contested issue, remanding the claim for a determination of causation under this section was proper. Jones v. Newberg, 890 S.W.2d 284, 1994 Ky. LEXIS 149 ( Ky. 1994 ).

Where the administrative law judge’s dismissal of the claimant’s workers’ compensation claim based upon the claimant’s failure to file a timely motion to hold the claim in abeyance or to extend proof time did not indicate whether the administrative law judge was aware that it was within the administrative law judge’s discretion under the Kentucky Workers’ Compensation Act, KRS 342.0011 et seq., to determine whether to dismiss the claim, a remand to clarify this issue was required. New Directions Hous. Auth. v. Walker, 149 S.W.3d 354, 2004 Ky. LEXIS 273 ( Ky. 2004 ).

Because no cause of action arises out of KRS 342.0011 , an injured employee stated no cognizable claim under that section; thus, his claim under KRS 342.0011 was dismissed for failure to state a claim. McBroom v. Ky. League of Cities Ins. Serv., 2006 U.S. Dist. LEXIS 3532 (W.D. Ky. Jan. 26, 2006).

22. — Consolidation.

Where employer moved that claimant’s pneumoconiosis award and res judicata principles precluded claimant from reopening pneumoconiosis claim and obtaining further benefits under this section for back injury, when claimant had earlier received temporary total occupational disability benefits for one year period and had completed, but failed to file, paperwork on his back injury claim or make a motion to consolidate his two injury awards, under circumstances where both claims arose on same day, no claim was filed for the back injury before the pneumoconiosis claim was taken under submission and therefore the issue of combined disability did not arise until after the time when the injury claim was filed and under these circumstances the mistake provision in the reopening statute is broad enough to allow for the reopening of the pneumoconiosis award in order to combine the two claims. Jeep Trucking v. Howard, 891 S.W.2d 78, 1995 Ky. LEXIS 13 ( Ky. 1995 ).

23. Educational or Mental Shortcomings.

A worker’s educational or intellectual shortcomings do not constitute a compensable, occupational disability or occupational disease; only injuries which would have been compensable had they been caused by work could be considered prior, active disability for worker’s compensation purposes. Transportation Cabinet v. Blackburn, 890 S.W.2d 627, 1994 Ky. LEXIS 131 ( Ky. 1994 ).

24. Factors Considered.

In total disability claims, when determining whether or not an individual is incapable of performing any work, medical assessments remain only one of the many elements to be considered, along with such things as the individual’s own testimony, vocational testimony, and physiological testimony. Ira A. Watson Dep't Store v. Hamilton, 1999 Ky. App. LEXIS 147 (Ky. Ct. App. Nov. 19, 1999), aff'd, 34 S.W.3d 48, 2000 Ky. LEXIS 131 ( Ky. 2000 ).

An individualized determination must be made of what a worker is and is not able to do after recovering from a work injury; such a determination necessarily includes a consideration of factors such as the worker’s post-injury physical, emotional, intellectual, and vocational status and how those factors interact and also includes a consideration of the likelihood that the particular worker will be able to find work consistently under normal employment conditions. McNutt Constr. v. Scott, 40 S.W.3d 854, 2001 Ky. LEXIS 5 ( Ky. 2001 ).

In awarding a claimant permanent total disability (PTD) benefits, an administrative law judge was not obliged under KRS 342.0011(11)(c) or (36) to select a particular impairment rating, since impairment was only one of the factors upon which a finding of PTD was based. Copar, Inc. v. Rogers, 127 S.W.3d 554, 2003 Ky. LEXIS 259 ( Ky. 2003 ).

Worker failed to carry his burden of proving that he was entitled to a finding of a greater disability than that of having a permanent, partial disability of 13 percent with a 2-multiplier, as was found by the Administrative Law Judge (ALJ), after the worker was injured lifting a patient while working as a nursing assistant, because the ALJ’s decision, which relied upon the independent medical exam of a neurosurgeon, that the worker could return to medium duty work based on the lack of post-surgical neurological findings was not so unreasonable that it was erroneous as a matter of law, particularly considering the worker’s age and his trainability for different work. Adams v. NHC Healthcare, 2005 Ky. App. LEXIS 205 (Ky. Ct. App.), sub. op., 2005 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. Sept. 23, 2005), aff'd, 199 S.W.3d 163, 2006 Ky. LEXIS 201 ( Ky. 2006 ).

25. Objective Medical Findings.

Neurologist's report and testimony, including testimony on the loss of range of motion, amounted to objective medical findings supporting the claimant's award for benefits for a wrist injury. Austin Powder Co. v. Stacy, 2016 Ky. App. LEXIS 81 (Ky. Ct. App. May 20, 2016).

A diagnosis is not itself an objective medical finding but, rather, a diagnosis must be supported by objective medical findings in order to establish the presence of a compensable injury. Gibbs v. Premier Scale Co./Indiana Scale Co., 50 S.W.3d 754, 2001 Ky. LEXIS 46 ( Ky. 2001 ).

A harmful change need not be, and need not be capable of being, documented by means of sophisticated diagnostic tools such as the x-ray, CAT scan, EEG, or MRI in order to be compensable; the existence of a harmful change can be established indirectly, through information gained from observation and from objective or standardized methods of testing which demonstrate the existence of symptoms of such a change. Gibbs v. Premier Scale Co./Indiana Scale Co., 50 S.W.3d 754, 2001 Ky. LEXIS 46 ( Ky. 2001 ).

Administrative Law Judge’s finding that an employee suffered physical and resulting psychological injury from a work-related accident was affirmed since the diagnoses of doctors and a psychiatrist were based upon symptoms of a harmful change that were confirmed by means of direct observation and/or testing that applied objective or standardized methods; further, the term “testing” did not require the use of sophisticated diagnostic tools and both testing and observation were not required. Staples, Inc. v. Konvelski, 56 S.W.3d 412, 2001 Ky. LEXIS 134 ( Ky. 2001 ).

A doctor’s testimony relating to diagnosis or causation need not be in strict conformity with the American Medical Association Guides in order to be considered. Simpson v. Franklin Ins. Agency, Inc., 2007 Ky. App. LEXIS 345 (Ky. Ct. App. Sept. 21, 2007), aff'd, 2008 Ky. Unpub. LEXIS 38 (Ky. Nov. 26, 2008).

Consensus procedure under KRS 342.316 for coal workers’ pneumoconiosis claims did not violate equal protection under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, and 3 because the inherent differences in pneumoconiosis, which was slow to develop, and a traumatic injury provided a reasonable basis for the different statutory treatment for such workers’ compensation claims. KRS 342.316 (13) did not impose a greater burden of proof than on those workers who claimed benefits under KRS 342.730 as the presumption in the consensus procedure was a rebuttable one that could be overcome with clear and convincing evidence. Durham v. Peabody Coal Co., 272 S.W.3d 192, 2008 Ky. LEXIS 240 ( Ky. 2008 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

26. “Physicians.”

Testimony of the audiologist concerning the cause of the claimant’s hearing impairment was admissible even though the audiologist was not listed as a physician under KRS 342.0011(32) since the audiologist who conducted the testing on the claimant’s hearing impairment was a university evaluator and KRS 342.315(2) referred to “physicians and institutions performing evaluations” and “designated evaluators” as people competent to do such testing. Bright v. Am. Greetings Corp., 62 S.W.3d 381, 2001 Ky. LEXIS 219 ( Ky. 2001 ).

27. “Persons”.

State employees of the Kentucky Department of Transportation were not entitled to “up the ladder” immunity from liability in an action filed by the deceased construction worker, pursuant to KRS 342.690 , because the Department could not be considered as a contractor under KRS 342.610 since government agencies were not included in the definition of “persons” under KRS 342.0011 . Hensley v. Davis, 2006 Ky. App. LEXIS 304 (Ky. Ct. App.), sub. op., 2006 Ky. App. Unpub. LEXIS 612 (Ky. Ct. App. Oct. 6, 2006), aff'd, 256 S.W.3d 16, 2008 Ky. LEXIS 149 ( Ky. 2008 ).

Because an employee only had to show a complete and permanent inability to work in order to show an “impairment,” the Workers’ Compensation Board erred in concluding that the employee’s motion to reopen under KRS 342.125(1)(d) required evidence of an increased impairment rating, as defined in KRS 342.0011(35). Farris v. City of Louisville, 209 S.W.3d 486, 2006 Ky. App. LEXIS 343 (Ky. Ct. App. 2006).

City was not liable as a contractor under KRS 342.610(2) for the injury a compensation benefits claimant sustained during the course of his employment with an uninsured employer because the city was not a “person” for the purposes of KRS Chapter 342 and was not liable under KRS 342.610(2) as an employer; a governmental entity is not a “person.” Uninsured Employers' Fund v. City of Salyersville, 260 S.W.3d 773, 2008 Ky. LEXIS 148 ( Ky. 2008 ).

KRS 342.0011(16), did not include governmental entities within the definition of a “person” because KRS 342.630 made it clear that the Legislature intended not to include governmental entities within the term “person;” KRS 342.630 considers persons and governmental entities to be separate classes of employers subject to KRS Chapter 342. Davis v. Hensley, 256 S.W.3d 16, 2008 Ky. LEXIS 149 ( Ky. 2008 ).

Because KRS 342.610(2) considers only persons to be contractors and does not hold a governmental entity liable as the “up-the-ladder” employer, KRS 342.690(1) does not entitle a governmental entity or its employees to an exclusive remedy defense on that basis. Davis v. Hensley, 256 S.W.3d 16, 2008 Ky. LEXIS 149 ( Ky. 2008 ).

28. “Widow”.

Although the workers’ compensation law does not define “widow,” the definition is a woman whose husband is dead and who has not remarried; thus, the widow’s workers’ compensation death benefit would terminate on the date when the widow became qualified to received Social Security benefits as the husband’s widow, at age 60 pursuant to 42 USCS § 402(e). Morsey, Inc. v. Frazier, 245 S.W.3d 757, 2008 Ky. LEXIS 34 ( Ky. 2008 ).

29. Temporary Total Disability.

In a workers’ compensation case, a trial court did not err by awarding temporary total disability (TTD) benefits from the date after an injury occurred until the date that a claimant reached maximum medical improvement (MMI); the earliest date that a physician assigned a permanent impairment rating constituted evidence that MMI occurred and TTD ended on or before that date. An administrative law judge did not err by terminating the claimant’s TTD award on the date of the earliest permanent impairment rating because no evidence supported much less compelled a finding that MMI occurred earlier. Abel Verdon Constr. v. Rivera, 348 S.W.3d 749, 2011 Ky. LEXIS 116 ( Ky. 2011 ).

Court of appeals erred in reversing an award of TTD benefits on the ground that an ALJ did not make the essential findings under KRS 342.0011(11)(a) because the ALJ determined that the employee had not reached maximum medical improvement from the work-related shoulder injury and that the employee had not reached a level of improvement to return to employment. Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 2012 Ky. LEXIS 122 ( Ky. 2012 ).

30. Impairment Rating.

In a workers' compensation case, there was substantial evidence that a claimant had a permanent psychological impairment rating where evidence controverted the basis for an alternative causation opinion, it could have been reasonably inferred that the psychological condition had stabilized and that he had reached maximum medical improvement, and, because the employer did not seek an order to allowing it to choose a treating physician or a reduction of benefits, it could not complain at this juncture that the employee did not receive treatment or testing suggested by a doctor. The claimant's failure to seek psychological/psychiatric treatment did not bar an assignment of a permanent impairment rating. Martin County Coal Co./Pilgrim Mining Co. v. Goble, 449 S.W.3d 362, 2014 Ky. LEXIS 616 ( Ky. 2014 ).

When calculating the income benefit for claimant’s work-related injury suffered during an automobile collision, the administrative law judge (ALJ) erred by failing to subtract the 5% impairment rating that physicians assigned based on the preexisting back condition from the 21% impairment rating that existed when he reached maximum medical improvement after the work-related lumbar fusion. The Supreme Court of Kentucky held that the ALJ had to award income benefits based on the 16% impairment rating under KRS 342.0011(35) that remained. Audi of Lexington v. Elam, 367 S.W.3d 598, 2012 Ky. LEXIS 93 ( Ky. 2012 ).

31. Self-Insurer.

Guarantor was immune from being sued in a negligence case by the estates of deceased coal miners because it applied for and was granted status as a self-insurer; the guarantor was a carrier because it was a self-insurer authorized to insure the employees of its subsidiaries, and it met the regulatory and statutory requirements to gain approval for being a self-insurer. Even if the guarantor did not strictly meet the definition of a carrier or self-insurer, public policy still dictated that it be granted immunity. Falk v. Alliance Coal, LLC, 2013 Ky. App. LEXIS 127 (Ky. Ct. App. Aug. 16, 2013), aff'd, 461 S.W.3d 760, 2015 Ky. LEXIS 1630 ( Ky. 2015 ).

32. Carrier.

Parent company that completely “self-insures” the liability of its subsidiary as provided in the workers' compensation regulations, is a carrier and immune from tort liability, just as its subsidiary is; to the extent that Boggs v. Blue Diamond Coal Co., 590 F.2d 655 (6th Cir. 1979), holds otherwise, it is incorrect. Therefore, a parent company was immune from tort liability for the deaths of several miners. Falk v. Alliance Coal, LLC, 461 S.W.3d 760, 2015 Ky. LEXIS 1630 ( Ky. 2015 ).

Cited in:

White v. Stewarts Dry Goods Co., 531 S.W.2d 504, 1975 Ky. LEXIS 39 ( Ky. 1975 ), overruled, Brusman v. Newport Steel Corp., 17 S.W.3d 514, 2000 Ky. LEXIS 59 ( Ky. 2000 ); Silvers v. Marley Co., 566 S.W.2d 767, 1978 Ky. App. LEXIS 525 (Ky. Ct. App. 1978); Transport Motor Express, Inc. v. Finn, 568 S.W.2d 509, 1977 Ky. App. LEXIS 922 (Ky. Ct. App. 1977); Land v. Starks, 628 S.W.2d 346, 1981 Ky. App. LEXIS 316 (Ky. Ct. App. 1981); Wells v. White, 648 S.W.2d 77, 1983 Ky. LEXIS 232 ( Ky. 1983 ); O.K. Precision Tool & Die Co. v. Wells, 678 S.W.2d 397, 1984 Ky. LEXIS 291 ( Ky. 1984 ); Woolum v. Woolum, 684 S.W.2d 20, 1984 Ky. App. LEXIS 571 (Ky. Ct. App. 1984); Eaton Axle Corp. v. Nally, 688 S.W.2d 334, 1985 Ky. LEXIS 219 ( Ky. 1985 ); National Mines Corp. v. Pitts, 806 S.W.2d 636, 1991 Ky. LEXIS 41 ( Ky. 1991 ); Peabody Coal Co. v. Gossett, 819 S.W.2d 33, 1991 Ky. LEXIS 180 ( Ky. 1991 ); Moore v. Sunstone Energy, Inc., 849 S.W.2d 529, 1993 Ky. LEXIS 56 ( Ky. 1993 ); McKenzie v. Whayne Supply Co., 898 S.W.2d 484, 1995 Ky. LEXIS 56 ( Ky. 1995 ); Coal Dust Coal Co. v. Stiltner, 905 S.W.2d 859, 1995 Ky. LEXIS 100 ( Ky. 1995 ); Brockway v. Rockwell Int’l, 907 S.W.2d 166, 1995 Ky. App. LEXIS 169 (Ky. Ct. App. 1995); Bevins Coal Co. v. Ramey, 947 S.W.2d 55, 1997 Ky. LEXIS 72 ( Ky. 1997 ); Begley v. Mountain Top, 968 S.W.2d 91, 1998 Ky. LEXIS 77 ( Ky. 1998 ); Commonwealth v. Guffey, 42 S.W.3d 618, 2001 Ky. LEXIS 63 ( Ky. 2001 ); Ryan’s Family Steakhouse v. Thomasson, 82 S.W.3d 889, 2002 Ky. LEXIS 159 ( Ky. 2002 ); Davis v. Ford Motor Co., 244 F. Supp. 2d 784, 2003 U.S. Dist. LEXIS 1584 (W.D. Ky. 2003 ); Sweeney v. King’s Daughters Med. Ctr., 260 S.W.3d 829, 2008 Ky. LEXIS 175 ( Ky. 2008 ); Maxx v. Blagg, 274 S.W.3d 436, 2008 Ky. LEXIS 315 ( Ky. 2008 ); White v. Great Clips, — S.W.3d —, 2008 Ky. App. LEXIS 208 (Ky. Ct. App. 2008); White v. Great Clips, 259 S.W.3d 501, 2008 Ky. App. LEXIS 223 (Ky. Ct. App. 2008); Quebecor Book Co. v. Mikletich, 322 S.W.3d 38, 2010 Ky. LEXIS 245 ( Ky. 2010 ); Miller v. Go Hire Empl. Dev., Inc., 2015 Ky. App. LEXIS 143 (Oct. 9, 2015).

NOTES TO UNPUBLISHED DECISIONS

  1. Disability.
  2. —Total.
1. Disability.
2. —Total.

Unpublished decision: Substantial evidence supported the finding of an administrative law judge (ALJ) that a claimant, who was a factory worker, suffered a permanent total disability because the ALJ, in finding that the claimant could not obtain employment unless the claimant completed nurse's training, relied upon the testimony of the claimant, the testimony and reports of a doctor who examined the claimant, the reports of the doctor who treated the claimant, the report of a vocational rehabilitation specialist, and the report of the employer's vocational expert. Roby v. Trim Masters, Inc., 2016 Ky. App. LEXIS 129 (Ky. Ct. App. July 22, 2016), aff'd, 2017 Ky. Unpub. LEXIS 48 (Ky. Aug. 24, 2017).

Opinions of Attorney General.

The operation of farm premises on which saddle horses are bred and raised would be “agriculture” as that term is used in subsection (16) (now (18)) of this section. OAG 73-46 .

Research References and Practice Aids

Journal of Mineral Law & Policy.

Krause, Drug and Alcohol Abuse in Mining: An Employer’s Dilemma, 3 J.M.L. & P., 2 (1988).

Kentucky Bench & Bar.

Patterson, Legislative Changes in Workers’ Compensation; The Pendulum Swings, Vol. 46, No. 4, October 1982, Ky. Bench & Bar 30.

Schabell, Case Development for the Plaintiff in Workers’ Compensation Cases, Vol. 50, No. 2, Spring 1986 Ky. Bench & B. 20.

Main, Worker’s Compensation as the Exclusive Remedy for Work-Related Psychological Injury, Volume 50, No. 3, Summer 1986 Ky. Bench & B. 18.

Jones, Kentucky Workers’ Compensation — Disability or Social Security, Volume 52, No. 4, Fall 1988 Ky. Bench & B. 29.

Durant, Medical Benefits Subrogation and Personal Injury Tort Recovery Conflicting Claims: Prescriptions For Relief, Vol. 58, No. 1, Winter 1994, Ky. Bench & Bar 19.

Jones, Occupational Disease — Six Years Later, Vol. 58, No. 1, Winter 1994, Ky. Bench & Bar 7.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

Schabell, 1994 Workers’ Compensation Changes — A Plaintiff’s Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 17.

Harned, Workplace Injuries: What’s an Injury?, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 11.

Devlin, Workplace Injuries: The Ever-Changing Law on Limitations and Repose for Gradual Injury Claims, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 17.

Pearlman, Workplace Injuries: Medical Benefits, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 27.

Lester, Ensuring the Health Care Worker Can Perform the Essential Functions of Their Position in the Increasingly Restricted Legal Environment Governing Hiring and Disability Accommodation, Volume 75, No. 3, May 2011, Ky. Bench & Bar 10.

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 65 Ky. L.J. 411 (1976-77).

Kentucky Law Survey: Cassis, Workers’ Compensation, 66 Ky. L.J. 509 (1977-78).

Kentucky Law Survey, Basil, Workers’ Compensation, 69 Ky. L.J. 687 (1980-81).

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Inman, Where Are You Hurt? Kentucky Redefines Workers’ Compensation Injury in a Post-Traumatic Stress Disorder World. 96 Ky. L.J. 465 (2007).

Northern Kentucky Law Review.

Notes, Workmen’s Compensation — Statute’s Coverage Extended to Non-Traumatic Injuries if the Nature of the Work Contributed to the Disability — Young v. Fulkerson Still Remains as the Basic Apportionment Formula — Haycraft v. Corhart Refractories Co., 544 S.W.2d 222, 1976 Ky. LEXIS 19 ( Ky. 1976 ), 4 N. Ky. L. Rev. 379 (1977).

Comments, Kentucky Workmen’s Compensation Benefits — Apportionment and Computation, 6 N. Ky. L. Rev. 91 (1979).

Jones and Jackson, Cumulative Trauma Disorders: A Repetitive Strain on the Workers’ Compensation System, 20 N. Ky. L. Rev. 765 (1993).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Workers’ Compensation, § 281.00.

342.0012. Workers’ Compensation Advisory Council. [Repealed]

History. Enact. Acts 1987 (Ex. Sess.), ch. 1, § 61(1)-(8), effective October 26, 1987; 1990, ch. 4, § 1, effective July 13, 1990; 2010, ch. 24, § 1778, effective July 15, 2010; repealed by 2017 ch. 80, § 58, effective June 29, 2017; repealed by 2017 ch. 82, § 10, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1987 (Ex. Sess.), ch. 1, § 61(1)-(8), effective October 26, 1987; 1990, ch. 4, § 1, effective July 13, 1990; 2010, ch. 24, § 1778, effective July 15, 2010), was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017; and 2017, ch. 82, sec. 10, effective June 29, 2017.

342.0015. Application of 1996 (1st Extra. Sess.) Ky. Acts ch. 1.

The substantive provisions of 1996 (1st Extra. Sess.) Ky. Acts ch. 1 shall apply to any claim arising from an injury or last exposure to the hazards of an occupational disease occurring on or after December 12, 1996. Procedural provisions of 1996 (1st Extra. Sess.) Ky. Acts ch. 1 shall apply to all claims irrespective of the date of injury or last exposure, including, but not exclusively, the mechanisms by which claims are decided and workers are referred for medical evaluations. The provisions of KRS 342.120(3), 342.125(8), 342.213(2)(e), 342.265 , 342.270(3), 342.320 , 342.610(3), 342.760(4), and 342.990(11) are remedial.

History. Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 82, effective December 12, 1996; 2000, ch. 514, § 37, effective July 14, 2000.

NOTES TO DECISIONS

1. Construction With Other Laws.

This section expresses a clear legislative intent for KRS 342.315 and 342.316(3)(b)4.b. to apply to all claims pending before an arbitrator or administrative law judge on or after December 12, 1996. Magic Coal Co. v. Fox, 19 S.W.3d 88, 2000 Ky. LEXIS 60 ( Ky. 2000 ).

December 12, 1996 amendment to KRS 342.125(1) does not govern the type of evidence necessary to establish the right to greater benefits under KRS 342.730 with respect to a reopened claim, but changes only a procedural requirement, i.e., one of the grounds upon which a motion to reopen may be granted; in other words, under KRS 342.0015 , KRS 342.125(1)(d) addresses the necessary prima facie showing in order to prevail on a motion to reopen that is filed on or after December 12, 1996, but has no effect on the substantive proof requirements for a claim that arose before its effective date. Dingo Coal Co. v. Tolliver, 129 S.W.3d 367, 2004 Ky. LEXIS 75 ( Ky. 2004 ).

Because the temporary total disability (TTD) exception in KRS 342.125 (3) concerns the procedure for reopening a workers’ compensation benefit award, KRS 342.125 (8) permits any claim to be reopened at any time upon proof that an injury causes TTD. The provisions in KRS 342.0015 regarding the application of the substantive provisions of KRS 342.125, such as KRS 342.125(6), do not affect the application of the TTD exception. Officeware v. Jackson, 247 S.W.3d 887, 2008 Ky. LEXIS 60 ( Ky. 2008 ).

Workers’ compensation benefit claimant’s motion to reopen his benefit award to seek temporary total disability (TTD) payments regarding post-award back surgery was not untimely because, contrary to the employer’s assertions, the version of KRS 342.125(3) in place when the claimant filed his motion to reopen was applicable to his claim. Officeware v. Jackson, 247 S.W.3d 887, 2008 Ky. LEXIS 60 ( Ky. 2008 ).

Cited:

Daub v. Baker Concrete, 25 S.W.3d 124, 2000 Ky. LEXIS 91 ( Ky. 2000 ); Dingo Coal Co. v. Tolliver, 129 S.W.3d 367, 2004 Ky. LEXIS 75 ( Ky. 2004 ).

342.002. Definition of “hazardous employment,” as used in KRS 342.005 to 342.008. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 203, § 1(3)) was repealed by Acts 1966, ch. 255, § 283.

342.003. Definition of “employer” and “hazardous occupations” as used in KRS 342.016 and 342.017. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 61, § 3) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973.

342.004. Liberal construction of chapter — Presumption in case of pneumoconiosis or silicosis. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 187, § 7; 1972, ch. 78, § 20) was repealed by Acts 1980, ch. 104, § 24, effective July 15, 1980.

342.005. Employers and employees to whom chapter applies — Functions of board in determining applicability — Voluntary election to come under chapter. [Repealed.]

Compiler’s Notes.

This section (4880; amend. Acts 1944, ch. 82, § 1; 1946, ch. 203, §§ 1(1), (2)(a)(b); 1948, ch. 64, § 1; 1956, ch. 77, § 1; 1960, ch. 147, § 1; 1964, ch. 192, § 2; 1970, ch. 7, § 1) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.610 to 342.660 .

342.006. Liability of employer in hazardous employment who complies with chapter; liability of one who does not comply. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 203, §§ 1(2)(c) and 1(2)(d)) was repealed by Acts 1966, ch. 255, § 283, effective June 16, 1966.

342.007. Notice that compensation coverage has been provided, and that employes may elect to accept it; notice of other matters. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 203, § 1(2)(e)) was repealed by Acts 1966, ch. 255, § 283, effective June 16, 1966.

342.008. Applicability of chapter to employers in hazardous employment. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 203, § 1(2)(f)) was repealed by Acts 1966, ch. 255, § 283, effective June 16, 1966.

342.009. Constitutionality of 1946 enactments relating to employers in hazardous employment. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 203, § 2) was repealed by Acts 1966, ch. 255, § 283, effective June 16, 1966.

342.010. “Employer” includes municipalities. [Repealed.]

Compiler’s Notes.

This section (4881; amend. Acts 1956, ch. 155; 1964, ch. 192, § 3) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.630(2).

342.011. Coverage for employees in welfare institutions. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 46) was repealed by Acts 1956, ch. 65.

342.012. Business owners — Election to be included as employees — Qualified partners and members, nonqualified partners and members, and limited liability company defined — Provision of partnership agreement or articles of organization upon request.

  1. For the purposes of this chapter, an owner or owners of a business, including qualified partners of a partnership owning a business, or qualified members of a limited liability company, whether or not employing any other person to perform a service for hire, shall be included within the meaning of the term employee if the owner, owners, qualified partners, or qualified members of a limited liability company elect to come under the provisions of this chapter and provide the insurance required thereunder. Nothing in this section shall be construed to limit the responsibilities of the owners, partners, or members of a limited liability company to provide coverage for their employees, nonqualified partners, or nonqualified members, if any, required under this chapter.
  2. When an owner, owners, qualified partners, or qualified members of a limited liability company have elected to be included as employees, this inclusion shall be accomplished by the issuance of an appropriate endorsement to a workers’ compensation insurance policy.
  3. For the purpose of this section, “qualified partner” or “qualified member or members” means, respectively, a partner who has entered into a meaningful partnership agreement or a member who has entered into meaningful articles of organization or a meaningful operating agreement of a limited liability company, which document shows on its face that the partner will substantially participate in the profit or loss of the business engaged in by the partnership or limited liability company and that the partner or member has made some contribution to the partnership or limited liability company which entitles him or her to participate in the profits of the business as well as to participate in the decision-making process of the partnership or limited liability company.
  4. For the purposes of this section, “nonqualified partner” or “nonqualified member” means, respectively, a person who has entered into a partnership agreement, or articles of organization or operating agreement of a limited liability company, which document shows on its face that this person will receive regular payments in exchange for work for the business engaged in by the partnership or limited liability company; that the person will not participate in the decision-making of the partnership or limited liability company and will not participate in the profits and losses of the business engaged in by the partnership or limited liability company.
  5. Every partnership and limited liability company shall provide, upon the request of the commissioner or his or her representative, a copy of its partnership agreement or articles of organization for purposes of demonstrating compliance with this section and KRS 342.340 . With particular reference to employers engaged in coal mining, the commissioner shall promptly report the failure to comply with the provisions of this subsection to the Energy and Environment Cabinet, Department for Natural Resources, Division of Mine Safety, so that appropriate action may be undertaken pursuant to KRS 351.175 .
  6. For purposes of this section, a “limited liability company” means an entity defined in KRS 275.015 and organized under the provisions of KRS Chapter 275.

HISTORY: Enact. Acts 1976, ch. 219, § 1; 1987 (Ex. Sess.), ch. 1, § 4, effective October 26, 1987; 1990, ch. 20, § 1, effective July 13, 1990; 1994, ch. 181, Part 14, § 67, effective April 4, 1994; 1996, ch. 332, § 1, effective July 15, 1996; 1998, ch. 341, § 45, effective July 15, 1998; 2005, ch. 123, § 43, effective June 20, 2005; 2010, ch. 24, § 1779, effective July 15, 2010; 2014, ch. 16, § 1, effective July 15, 2014; 2015 ch. 87, § 6, effective June 24, 2015.

NOTES TO DECISIONS

  1. Applicability.
  2. Corporate Officer.
  3. Sole Proprietor.
1. Applicability.

KRS 342.012 is unambiguous and clearly does not allow an executive officer, an “employee” under the Workers’ Compensation Act, to withdraw from the Act on the grounds he is an owner of the corporation. Ky. Employers' Mut. Ins. v. J & R Mining, Inc., 2008 Ky. App. LEXIS 51 (Ky. Ct. App. Mar. 7, 2008), aff'd, 279 S.W.3d 513, 2009 Ky. LEXIS 77 ( Ky. 2009 ).

2. Corporate Officer.

Because the decedent was a corporate officer of the employer, he was an employee pursuant to KRS 342.640 regardless of whether he was also a shareholder; further, KRS 342.375 required every workers’ compensation policy to cover an employer’s entire liability, and, as the administrative law judge found that the insurer failed to show that the employer filed a waiver of coverage with the Office of Workers’ Claims as required by KRS 342.395(1) and 803 KAR 25:130, § 1 before the injury, a policy endorsement that excluded the decedent from coverage was ineffective. Ky. Employers' Mut. Ins. v. J & R Mining, Inc., 279 S.W.3d 513, 2009 Ky. LEXIS 77 ( Ky. 2009 ).

3. Sole Proprietor.

Sole proprietor was not entitled to benefits for his injury under a workers' compensation insurance policy issued to him by the insurer where an exclusion endorsement specifically named him as excluded from coverage for bodily injury, and the fact that he was also named as an insured did not make the term ambiguous or otherwise create a conflict in the policy. Ky. Employers' Mut. Ins. v. Ellington, 459 S.W.3d 876, 2015 Ky. LEXIS 1622 ( Ky. 2015 ).

Research References and Practice Aids

Kentucky Law Journal.

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Northern Kentucky Law Review.

Kentucky Survey Issue: Article: The 2010 Amendments to Kentucky’s Business Entity Laws, 38 N. Ky. L. Rev. 383 (2011).

342.015. Acceptance of chapter relieves of other liability — Exceptions — Wilful misconduct. [Repealed.]

Compiler’s Notes.

This section (4882: amend. Acts 1956, ch. 77, § 2) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973.

342.016. Bond, security or insurance policy to be filed by employer in hazardous occupation who does not elect to operate under chapter — Penal sum. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 61, § 1) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973.

342.017. Hearing concerning giving of bond or security, and amount and terms thereof — Appeal. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 61, § 2) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973.

342.019. Coverage of chiropractic services.

A doctor of chiropractic, licensed to practice under the provisions of KRS Chapter 312, shall have his services to employees covered by the workers’ compensation law paid for under the workers’ compensation provisions of KRS Chapter 342. An employee claiming benefits under the provisions of KRS Chapter 342 shall have the right to choose the services of a licensed doctor of chiropractic.

History. Enact. Acts 1978, ch. 165, § 1, effective June 17, 1978; 1978, ch. 282, § 20, effective June 17, 1978.

NOTES TO DECISIONS

  1. Application.
  2. Effect of Enactment.
1. Application.

This section was intended to be applied retrospectively to work-related injuries sustained prior to June 17, 1978, as well as prospectively. Moss v. Holloway Constr. Co., 644 S.W.2d 331, 1982 Ky. LEXIS 326 ( Ky. 1982 ).

Where claimant received work-related injury prior to effective date (June 17, 1978) of this section and was awarded right to compensation for expenses required for treatment of disability, he was entitled to recover from employer the amount of money expended for chiropractic services received after the effective date of this section since this section applies to injuries sustained prior to its effective date. Moss v. Holloway Constr. Co., 644 S.W.2d 331, 1982 Ky. LEXIS 326 ( Ky. 1982 ).

2. Effect of Enactment.

The effect of the enactment of this section was to provide chiropractic services to employees covered by the Workers’ Compensation Act and paid for under the workers’ compensation provisions of KRS Chapter 342. This result overcame the provisions of KRS 342.020 , which limited payment to medical treatment as defined by statute. Moss v. Holloway Constr. Co., 644 S.W.2d 331, 1982 Ky. LEXIS 326 ( Ky. 1982 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982-April 1983, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 14.

Hendy, Payment of Medical Benefits for the Injured Worker: Is the Current System in Need of Refinement?, Vol. 56, No. 4, Fall 1992, Ky. Bench & Bar 28.

Northern Kentucky Law Review.

Comments, Kentucky Workmen’s Compensation Benefits — Apportionment and Computation, 6 N. Ky. L. Rev. 91 (1979).

342.020. Medical treatment at expense of employer — Duration of employer’s obligation — Continuation of benefits — Selection of physician and hospital — Payment — Managed health care system — Artificial members and braces — Waiver of privilege — Disclosure of interest in referrals — Urine drug screenings.

  1. In addition to all other compensation provided in this chapter, the employer shall pay for the cure and relief from the effects of an injury or occupational disease the medical, surgical, and hospital treatment, including nursing, medical, and surgical supplies and appliances, as may reasonably be required at the time of the injury and thereafter for the length of time set forth in this section, or as may be required for the cure and treatment of an occupational disease.
  2. In claims resulting in an award of permanent total disability or resulting from an injury described in subsection (9) of this section, the employer’s obligation to pay the benefits specified in this section shall continue for so long as the employee is disabled regardless of the duration of the employee’s income benefits.
    1. In all permanent partial disability claims not involving an injury described in subsection (9) of this section, the employer’s obligation to pay the benefits specified in this section shall continue for seven hundred eighty (780) weeks from the date of injury or date of last exposure. (3) (a) In all permanent partial disability claims not involving an injury described in subsection (9) of this section, the employer’s obligation to pay the benefits specified in this section shall continue for seven hundred eighty (780) weeks from the date of injury or date of last exposure.
    2. In all permanent partial disability claims not involving an injury described in subsection (9) of this section, the commissioner shall, in writing, advise the employee of the right to file an application for the continuation of benefits as described in this section. This notice shall be made to the employee seven hundred fifty-four (754) weeks from the date of injury or last exposure.
    3. An employee shall receive a continuation of benefits as described in this section for additional time beyond the period provided in paragraph (a) of this subsection as long as continued medical treatment is reasonably necessary and related to the work injury or occupational disease if:
      1. An application is filed within seventy-five (75) days prior to the termination of the seven hundred eighty (780) week period;
      2. The employee demonstrates that continued medical treatment is reasonably necessary and related to the work injury or occupational disease; and
      3. An administrative law judge determines and orders that continued benefits are reasonably necessary and related to the work injury or occupational disease for additional time beyond the original seven hundred eighty (780) week period provided in paragraph (a) of this subsection.
    4. If the administrative law judge determines that medical benefits are not reasonably necessary or not related to the work injury or occupational disease, or if an employee fails to make proper application for continued benefits within the time period provided in paragraph (c) of this subsection, any future medical treatment shall be deemed to be unrelated to the work injury and the employer’s obligation to pay medical benefits shall cease permanently.
  3. In the absence of designation of a managed health care system by the employer, the employee may select medical providers to treat his injury or occupational disease. Even if the employer has designated a managed health care system, the injured employee may elect to continue treating with a physician who provided emergency medical care or treatment to the employee. The employer, insurer, or payment obligor acting on behalf of the employer, shall make all payments for services rendered to an employee directly to the provider of the services within thirty (30) days of receipt of a statement for services. The commissioner shall promulgate administrative regulations establishing conditions under which the thirty (30) day period for payment may be tolled. The provider of medical services shall submit the statement for services within forty-five (45) days of the day treatment is initiated and every forty-five (45) days thereafter, if appropriate, as long as medical services are rendered. Except as provided in subsection (7) of this section, in no event shall a medical fee exceed the limitations of an adopted medical fee schedule or other limitations contained in KRS 342.035 , whichever is lower. The commissioner may promulgate administrative regulations establishing the form and content of a statement for services and procedures by which disputes relative to the necessity, effectiveness, frequency, and cost of services may be resolved.
  4. Notwithstanding any provision of the Kentucky Revised Statutes to the contrary, medical services and treatment provided under this chapter shall not be subject to copayments or deductibles.
  5. Employers may provide medical services through a managed health care system. The managed health care system shall file with the Department of Workers’ Claims a plan for the rendition of health care services for work-related injuries and occupational diseases to be approved by the commissioner pursuant to administrative regulations promulgated by the commissioner.
  6. All managed health care systems rendering medical services under this chapter shall include the following features in plans for workers’ compensation medical care:
    1. Copayments or deductibles shall not be required for medical services rendered in connection with a work-related injury or occupational disease;
    2. The employee shall be allowed choice of provider within the plan;
    3. The managed health care system shall provide an informal procedure for the expeditious resolution of disputes concerning rendition of medical services;
    4. The employee shall be allowed to obtain a second opinion, at the employer’s expense, from an outside physician if a managed health care system physician recommends surgery;
    5. The employee may obtain medical services from providers outside the managed health care system, at the employer’s expense, when treatment is unavailable through the managed health care system;
    6. The managed health care system shall establish procedures for utilization review of medical services to assure that a course of treatment is reasonably necessary; diagnostic procedures are not unnecessarily duplicated; the frequency, scope, and duration of treatment is appropriate; pharmaceuticals are not unnecessarily prescribed; and that ongoing and proposed treatment is not experimental, cost ineffective, or harmful to the employee; and
    7. Statements for services shall be audited regularly to assure that charges are not duplicated and do not exceed those authorized in the applicable fee schedules.
    8. A schedule of fees for all medical services to be provided under this chapter which shall not be subject to the limitations on medical fees contained in this chapter.
    9. Restrictions on provider selection imposed by a managed health care system authorized by this chapter shall not apply to emergency medical care.
  7. Except for emergency medical care, medical services rendered pursuant to this chapter shall be under the supervision of a single treating physician or physicians’ group having the authority to make referrals, as reasonably necessary, to appropriate facilities and specialists. The employee may change his designated physician one (1) time and thereafter shall show reasonable cause in order to change physicians.
  8. When a compensable injury or occupational disease results in the amputation or partial amputation of an arm, hand, leg, or foot, or the loss of hearing, or the enucleation of an eye or loss of teeth, or permanent total or permanent partial paralysis, the employer shall pay for, in addition to the other medical, surgical, and hospital treatment enumerated in subsection (1) and this subsection, a modern artificial member and, where required, proper braces as may reasonably be required at the time of the injury and thereafter during disability.
  9. Upon motion of the employer, with sufficient notice to the employee for a response to be filed, if it is shown to the satisfaction of the administrative law judge by affidavits or testimony that, because of the physician selected by the employee to treat the injury or disease, or because of the hospital selected by the employee in which treatment is being rendered, that the employee is not receiving proper medical treatment and the recovery is being substantially affected or delayed; or that the funds for medical expenses are being spent without reasonable benefit to the employee; or that because of the physician selected by the employee or because of the type of medical treatment being received by the employee that the employer will substantially be prejudiced in any compensation proceedings resulting from the employee’s injury or disease; then the administrative law judge may allow the employer to select a physician to treat the employee and the hospital or hospitals in which the employee is treated for the injury or disease. No action shall be brought against any employer subject to this chapter by any person to recover damages for malpractice or improper treatment received by any employee from any physician, hospital, or attendant thereof.
  10. An employee who reports an injury alleged to be work-related or files an application for adjustment of a claim shall 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. Notwithstanding any other provision in the Kentucky Revised Statutes, any physician, psychiatrist, chiropractor, podiatrist, hospital, or health care provider shall, within a reasonable time after written request by the employee, employer, workers’ compensation insurer, 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.
  11. When a provider of medical services or treatment, required by this chapter, makes referrals for medical services or treatment by this chapter, to a provider or entity in which the provider making the referral has an investment interest, the referring provider shall disclose that investment interest to the employee, the commissioner, and the employer’s insurer or the party responsible for paying for the medical services or treatment, within thirty (30) days from the date the referral was made.
    1. Except as provided in paragraphs (b) and (c) of this subsection, the employer, insurer, or payment obligor shall not be liable for urine drug screenings of patients in excess of: (13) (a) Except as provided in paragraphs (b) and (c) of this subsection, the employer, insurer, or payment obligor shall not be liable for urine drug screenings of patients in excess of:
      1. One (1) per year for a patient considered to be low-risk;
      2. Two (2) per year for a patient considered to be moderate-risk; and
      3. Four (4) per year for patients considered to be high-risk; based upon the screening performed by the treating medical provider and other pertinent factors.
    2. The employer, insurer, or payment obligor may be liable for urine drug screening at each office visit for patients that have exhibited aberrant behavior documented by multiple lost prescriptions, multiple requests for early refills of prescriptions, multiple providers prescribing or dispensing opioids or opioid substitutes as evidenced by the electronic monitoring system established in KRS 218A.202 or a similar system, unauthorized dosage escalation, or apparent intoxication.
    3. The employer, insurer, or payment obligor may request additional urine drug screenings which shall not count toward the maximum number of drug screenings enumerated in paragraph (a) of this subsection.
    4. The commissioner shall promulgate administrative regulations related to urine drug screenings as part of the practice parameters or treatment guidelines required under KRS 342.035 .

HISTORY: 4883: amend. Acts 1946, ch. 37, § 1; 1948, ch. 64, § 2; 1950, ch. 198; 1952, ch. 182, § 1; 1956, ch. 77, § 3; 1960, ch. 147, § 2; 1964, ch. 192, § 4; 1970, ch. 6, § 1; 1972, ch. 78, § 21; 1987 (Ex. Sess.), ch. 1, § 5, effective October 26, 1987; 1992, ch. 446, § 6, effective July 14, 1992; 1994, ch. 181, Part 5, § 17, effective April 4, 1994; 1994, ch. 512, Part 6, § 20, effective July 15, 1994; 1996, ch. 355, § 4, effective July 15, 1996; 1996 (1st Ex. Sess.), ch. 1, § 2, effective December 12, 1996; 2000, ch. 514, § 2, effective July 14, 2000; 2010, ch. 24, § 1780, effective July 15, 2010; 2018 ch. 40, § 1, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). This statute was amended in Section 1 of 2018 Ky. Acts ch. 40. Subsection (1) of Section 20 of that Act reads, “Sections 1, 3, and 12 of this Act shall apply to any claim arising from an injury or occupational disease or last exposure to the hazards of an occupational disease or cumulative trauma occurring on or after the effective date of this Act.”

NOTES TO DECISIONS

  1. Effect of 1987 Amendment.
  2. Mandatory.
  3. “Cure and Relief.”
  4. Selection of Physician.
  5. Medical Treatment.
  6. —Reasonable and Necessary.
  7. — Out-of-State.
  8. — Voluntary Treatment by Employer.
  9. — Offer of Operation.
  10. — Damages Caused by Improper Treatment.
  11. Medical Expenses.
  12. — Work Related.
  13. —Waiver.
  14. — Burden of Proof.
  15. — Travel Expenses.
  16. — Chiropractic Services.
  17. — Worsening of Condition.
  18. — Wife's Services.
  19. — Credit for Voluntary Payments.
  20. — Credit for Voluntary Overpayment.
  21. — Payments from Collateral Sources.
  22. — Liability of Special Fund.
  23. — Challenge.
  24. Awards.
  25. — Evidence.
  26. — Findings of Fact.
  27. — Modification.
  28. — Compensation.
  29. — — Remand.
  30. Private Cause of Action.
  31. Standard of Review On Appeal.
  32. Selection of Pharmacy.

29.5. —Time limits.

1. Effect of 1987 Amendment.

The 1987 amendment to this section was remedial rather than retrospective in nature and applies to all medical bills received after its effective date. Mitee Enters. v. Yates, 865 S.W.2d 654, 1993 Ky. LEXIS 163 ( Ky. 1993 ).

2. Mandatory.

This section is mandatory. Black Mountain Corp. v. Stewart, 272 Ky. 140 , 113 S.W.2d 1141, 1938 Ky. LEXIS 94 ( Ky. 1938 ).

3. “Cure and Relief.”

The Legislature, by using the conjunctive “and” with regard to the phrase “cure and relief” appearing in subsection (1) of this section, did not intend that only one who has sustained a “curable” work-related injury or disease should be entitled to medical benefits for relief therefrom; accordingly, the words “cure and relief” should be construed as “cure and/or relief.” National Pizza Co. v. Curry, 802 S.W.2d 949, 1991 Ky. App. LEXIS 11 (Ky. Ct. App. 1991).

ALJ did not err or apply an incorrect standard in denying a claimant a repeat sacroiliac joint injection where the ALJ reasonably inferred that the procedure was unproductive or outside the type of treatment generally accepted by the medical community based upon one physician’s opinion. Conley v. Super Servs., LLC, 557 S.W.3d 917, 2018 Ky. App. LEXIS 234 (Ky. Ct. App. 2018).

ALJ did not use the proper standard in denying a proposed caudal epidural injection, however, where another physician’s report established that the claimant received substantial relief from back pain after the injection, and under Ky. Rev. Stat. Ann. § 342.020(1), all that was required for the employer to be responsible was that services be for cure and relief. Conley v. Super Servs., LLC, 557 S.W.3d 917, 2018 Ky. App. LEXIS 234 (Ky. Ct. App. 2018).

4. Selection of Physician.

Where the claimant after his injury was taken to the hospital as an emergency case and a staff physician treated him and continued to treat him, it could not be said that the physician was “selected” by the claimant. Commonwealth Dep't of Highways v. Porter, 469 S.W.2d 350, 1971 Ky. LEXIS 295 ( Ky. 1971 ).

Where employer knew that claimant had returned to a doctor who had recommended surgery and continued to remain away from work pursuant to this doctor’s recommendation while another doctor had cleared him for work, employer was liable for disability which resulted from surgery because employer failed to move for selection of a different physician pursuant to subsection (3) of this section. Transport Assocs. v. Butler, 892 S.W.2d 296, 1995 Ky. LEXIS 27 ( Ky. 1995 ).

In a workers' compensation case, there was substantial evidence that a claimant had a permanent psychological impairment rating where evidence controverted the basis for an alternative causation opinion, it could have been reasonably inferred that the psychological condition had stabilized and that he had reached maximum medical improvement, and, because the employer did not seek an order to allowing it to choose a treating physician or a reduction of benefits, it could not complain at this juncture that the employee did not receive treatment or testing suggested by a doctor. The claimant's failure to seek psychological/psychiatric treatment did not bar an assignment of a permanent impairment rating. Martin County Coal Co./Pilgrim Mining Co. v. Goble, 449 S.W.3d 362, 2014 Ky. LEXIS 616 ( Ky. 2014 ).

5. Medical Treatment.

The term “medical treatment,” as used in this section, does not include chiropractic manipulation. Neagle v. State Highway Dep't, 371 S.W.2d 630, 1963 Ky. LEXIS 105 ( Ky. 1963 ).

This section directly imposes upon the employer the duty to furnish medical, surgical and hospital treatment to the injured employee for the cure of and relief from the effects of a compensable industrial injury. Commonwealth Dep't of Highways v. Porter, 469 S.W.2d 350, 1971 Ky. LEXIS 295 ( Ky. 1971 ).

Subdivision (1) of this section requires the employer of one determined to have incurred a work-related disability to pay for any reasonable and necessary medical treatment for relief whether or not the treatment has any curative effect. National Pizza Co. v. Curry, 802 S.W.2d 949, 1991 Ky. App. LEXIS 11 (Ky. Ct. App. 1991).

Although a workers’ compensation claimant did not file her claim within two (2) years of the manifestation of her disability, her claim was timely under KRS 342.185 with regard to the effects of cumulative trauma, and she was, therefore, entitled to medical treatment as provided in KRS 342.020 ; it could not be said that the claimant did not undergo additional harmful changes in the two years since filing her claim. Univ. of Ky. Family Practice v. Leach, 2006 Ky. App. LEXIS 389 (Ky. Ct. App. Dec. 22, 2006), aff'd, 237 S.W.3d 540, 2007 Ky. LEXIS 214 ( Ky. 2007 ).

Disability exists for the purposes of KRS 342.020(1) for so long as a work-related injury causes impairment, regardless of whether the impairment rises to a level that it warrants a permanent impairment rating, permanent disability rating, or permanent income benefits. FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 2007 Ky. LEXIS 23 ( Ky. 2007 ).

Because the repetitive motions required by a claimant’s job exacerbated her pre-existing condition, she sustained an injury under KRS 342.0011 ; further, because work performed within two years before the filing date aggravated the condition, the claim was timely under KRS 342.185 and the claimant was entitled to medical treatment under KRS 342.020 . Univ. of Ky. Family Practice v. Leach, 237 S.W.3d 540, 2007 Ky. LEXIS 214 ( Ky. 2007 ).

Workers’ compensation board improperly granted a claimant’s request for temporary total disability (TTD) benefits, which were sought during the employer’s motion to reopen to contest its liability for surgery after a final award had been entered under KRS 342.305 , because the employer’s reopening under KRS 342.125(4) and KRS 342.020 did not encompass the TTD issue. Bartee v. Univ. Med. Ctr., 244 S.W.3d 91, 2008 Ky. LEXIS 18 ( Ky. 2008 ).

ALJ erred by dismissing the TTD request based on a finding that the employee’s surgery was not compensable where the employee’s argument that the employer’s failure to file a timely medical dispute and motion to reopen, KRS 342.020 , rendered the proposed surgery compensable without regard to reasonableness and necessity. Lawson v. Toyota Motor Mfg., 330 S.W.3d 452, 2010 Ky. LEXIS 286 ( Ky. 2010 ).

6. —Reasonable and Necessary.

The administrative law judge’s decision that proposed surgery was neither reasonable nor necessary for the cure and relief of worker’s condition and that the employer should, therefore, not be required to pay for the procedure was supported by substantial evidence. Square D Co. v. Tipton, 862 S.W.2d 308, 1993 Ky. LEXIS 98 ( Ky. 1993 ).

An employer is not obligated to pay for treatments or procedures that, regardless of the competence of the treating physician, are shown to be unproductive or outside the type of treatment generally accepted by the medical profession as reasonable in the injured worker’s particular case; such decisions should be made by the administrative law judge based on the particular facts and circumstances of each case, so long as there is substantial evidence to support the decision. Square D Co. v. Tipton, 862 S.W.2d 308, 1993 Ky. LEXIS 98 ( Ky. 1993 ).

Administrative law judge erred by ruling the worker’s entitlement to future medical benefits was barred because he had successful surgery, had reached maximum medical improvement, and retained the ability to return to work without restrictions; the worker might require subsequent medical treatment and some future medical benefits relative to his work-related injury. Williams v. FEI Installation, 2005 Ky. App. LEXIS 280 (Ky. Ct. App. Dec. 22, 2005), aff'd, 214 S.W.3d 313, 2007 Ky. LEXIS 23 ( Ky. 2007 ).

Administrative law judge did not err by limiting an injured employee’s covered future medical expenses following a work related vehicular accident to the removal of broken windshield glass that was embedded in the employee’s skin and which would occasionally erupt through the employee’s skin. Greene v. Paschall Truck Lines, 239 S.W.3d 94, 2007 Ky. App. LEXIS 416 (Ky. Ct. App. 2007).

Employer’s contention that because the employee had not yet developed asbestosis he had to be denied medical benefits was rejected since the employee had calcified pleural plaque, which was a precursor to asbestosis; thus, the administrative law judge properly awarded medical benefits for the medical monitoring of his condition as a part of the treatment of an occupational disease. AK Steel Corp. v. Pollitt, 259 S.W.3d 505, 2008 Ky. App. LEXIS 227 (Ky. Ct. App. 2008).

Since being splattered in the face and eye with foreign blood or other potentially infectious material constituted a traumatic event for the purposes of KRS 342.0011(1), and KRS 342.020(1) entitled the affected worker to reasonable and necessary medical treatment for the cure and relief from the effects of an injury, the workers’ compensation carrier was liable for reasonable and necessary medical treatment, including both the initial treatment and post-exposure prophylaxis. Ky. Emplrs. Safety Ass'n v. Lexington Diagnostic Ctr., 291 S.W.3d 683, 2009 Ky. LEXIS 80 ( Ky. 2009 ).

Workers’ Compensation Board did not err in reversing the decision of an administrative law judge (ALJ) denying an employee an award of future medical treatment because KRS 342.020(1) obligated the employer to pay for any reasonable and necessary medical treatment for the cure and relief of the employee’s permanent disability; in assigning the employee a two percent whole body impairment rating, the ALJ found that she was permanently impaired as a result of her work-related injury to her knees, and a disability existed so long as there was impairment from the work-related injury. Max & Erma's v. Lane, 290 S.W.3d 695, 2009 Ky. App. LEXIS 119 (Ky. Ct. App. 2009).

7. — Out-of-State.

Upon proper showing the board is authorized to allow out-of-state treatment at the employer’s expense. Commonwealth Dep't of Highways v. Porter, 469 S.W.2d 350, 1971 Ky. LEXIS 295 ( Ky. 1971 ).

8. — Voluntary Treatment by Employer.

Authority of Workers’ Compensation Board to allow compensation for medical and surgical treatment not to exceed certain sums, and to regulate such charges, does not prevent employer from contracting to pay doctor reasonable sum for services rendered injured employees who may be entitled to compensation. Salyers v. Kenmont Coal Co., 226 Ky. 655 , 11 S.W.2d 705, 1928 Ky. LEXIS 150 ( Ky. 1928 ).

9. — Offer of Operation.

Board could, at any time during disability, require employer to offer employee medical operation for hernia, 90-day period referred to in law being period of treatment. Kroger Grocery & Baking Co. v. Bartle, 250 Ky. 658 , 63 S.W.2d 807, 1933 Ky. LEXIS 757 ( Ky. 1933 ).

Board, in ordering offer of operation for hernia, properly disregarded employer’s rejected offer of operation at maximum expense of $100 where law prescribed as much as $200. Kroger Grocery & Baking Co. v. Bartle, 250 Ky. 658 , 63 S.W.2d 807, 1933 Ky. LEXIS 757 ( Ky. 1933 ).

10. — Damages Caused by Improper Treatment.

A civil action cannot be brought against the employer for damages caused by a physician’s malpractice or improper treatment, but a claim for workers’ compensation benefits can be brought by the employee to recover for additional disability resulting from treatment which aggravates a work-related injury. Elizabethtown Sportswear v. Stice, 720 S.W.2d 732, 1986 Ky. App. LEXIS 1505 (Ky. Ct. App. 1986).

11. Medical Expenses.

An award by board for specified injuries is not in lieu of medical expense, but board may also make allowance for medical bills where employee has incurred such expense; this does not mean that the injured employee must have actually paid the expenses so incurred. Fame Armstrong Laundry Co. v. Brooks, 226 Ky. 22 , 10 S.W.2d 478, 1928 Ky. LEXIS 26 ( Ky. 1928 ).

Allowance for medical services was proper where there was evidence that employee had incurred medical expenses, and it was not necessary to show that medical bill had been tendered or paid. Black Mountain Corp. v. Seward, 275 Ky. 177 , 121 S.W.2d 4, 1938 Ky. LEXIS 394 ( Ky. 1938 ).

Where all hospital bills had already been paid by employer before the board awarded the statutory medical expenses, the award was merely directory, and was fully complied with by the prior payment. Leckie Collieries Co. v. Branham, 275 Ky. 748 , 122 S.W.2d 776, 1938 Ky. LEXIS 503 ( Ky. 1938 ).

The employer will only be required to pay for such reasonable medical services as have been or may be required by reason of the injury. Pioneer Coal Co. v. Sparks, 249 S.W.2d 725, 1952 Ky. LEXIS 844 ( Ky. 1952 ).

Where employee contracted lead poisoning from gasoline fumes but continued to work, he was not entitled to compensation but was entitled to an award for medical expenses. Allen v. Commonwealth, Dep't of Highways, 425 S.W.2d 283, 1968 Ky. LEXIS 413 ( Ky. 1968 ).

It is not necessarily inconsistent for the board to award payment of medical expenses without finding some extent of disability. Cavin v. Lake Constr. Co., 451 S.W.2d 159, 1970 Ky. LEXIS 378 ( Ky. 1970 ).

Although the board found the claimant’s disability was due entirely to the arousal into disabling reality of a pre-existing nondisabling disease, and that none of the disability would have resulted from the injury sustained in the employment accident had there been no pre-existing disease condition, the employer was still liable for the resulting medical, surgical and hospital expenses. Young v. Terwort, 459 S.W.2d 136, 1970 Ky. LEXIS 117 ( Ky. 1970 ).

The amount allowed for expenses of necessary medical, surgical and hospital treatment should be reasonable and should represent the fair value of the services as such. Commonwealth Dep't of Highways v. Porter, 469 S.W.2d 350, 1971 Ky. LEXIS 295 ( Ky. 1971 ) (decision prior to 1972 amendment).

The burden of establishing need of further treatment where that need requires an expenditure by the employer in excess of $3,500 is upon the employee, with the board exercising sound discretion in determining if the additional expense was reasonable under the circumstances. Commonwealth Dep't of Highways v. Porter, 469 S.W.2d 350, 1971 Ky. LEXIS 295 ( Ky. 1971 ) (decision prior to 1972 amendment).

This section does not say that the employer shall pay medical and hospital expenses unless someone else has paid them, and such an order by the board would be in clear contravention of the statute. Bryan v. Henderson Electric Co., 566 S.W.2d 823, 1978 Ky. App. LEXIS 540 (Ky. Ct. App. 1978).

The Workers’ Compensation Board has continuing jurisdiction over the amounts payable under an award of reasonable medical expenses to a disabled claimant, and the Circuit Court is constrained to do no more than render judgment in accordance therewith; therefore, where the employer failed to present the issue of the reasonableness of the medical expenses to the Board, the employer was estopped from disputing the sums due and payable under the terms of the award which the disabled claimant sought to enforce in a Circuit Court action. Hale v. Nugent Sand Co., 657 S.W.2d 246, 1983 Ky. App. LEXIS 320 (Ky. Ct. App. 1983).

Where claimant suffered a work-related injury to her leg but refused to follow certain medical advice her medical benefits should not be reduced commensurate with the reduction in her income benefits which were reduced because of her failure to follow medical advice was unreasonable. Luttrell v. Cardinal Aluminum Co., 909 S.W.2d 334, 1995 Ky. App. LEXIS 181 (Ky. Ct. App. 1995).

Argument of employer that it was not responsible for medical expenses arising from 1995 incident was rejected for even though the subsequent injury was to a different part of the back and followed a non-work-related incident, the medical expenses arising therefrom were compensable since the work-related injury caused the part of the back that was subsequently injured to be more susceptible to injury. Addington Resources v. Perkins, 947 S.W.2d 421, 1997 Ky. App. LEXIS 54 (Ky. Ct. App. 1997).

Future medical benefits under workers’ compensation law were not duplicative of future medical expenses under a civil judgment until they were incurred and payable under workers’ compensation law; a third party’s claim for contribution from a workers’ compensation insurer under a subrogation agreement was dependent on the insurer’s obligation under workers’ compensation, and thus, the third party was not entitled to immediate reimbursement for the amount of the future medical expenses awarded to the injured worker under a civil judgment. Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 2002 Ky. App. LEXIS 2344 (Ky. Ct. App. 2002).

Future medical benefits could be awarded to a workers’ compensation claimant under KRS 342.020(1) in the absence of a finding of disability, as it was possible that the claimant’s non-disabling injury might still require medical attention. Combs v. Ky. River Dist. Health Dep't, 194 S.W.3d 823, 2006 Ky. App. LEXIS 35 (Ky. Ct. App. 2006).

Where injured employee’s condition was entirely work-related and serious enough to require surgery, he was receiving physical therapy when he was deposed, and no medical evidence indicated that future medical treatment would be unreasonable or unnecessary, he was entitled to an award of future medical benefits under KRS 342.020(1), even though he did not sustain a permanent partial disability. FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 2007 Ky. LEXIS 23 ( Ky. 2007 ).

Workers’ Compensation Board correctly found that the Kentucky Employers Safety Association was responsible for an employee’s reasonable and necessary medical treatment under KRS 342.020(1), because contact with blood and other body fluids alone was sufficient to constitute a physical injury for the purposes of KRS 342.0011(1); the employee suffered a traumatic event when a patient’s blood splattered into his eye, and although the employee could not offer proof of a permanent impairment as a result of his contact with the patient’s blood, he was not precluded from an award of medical benefits. Ky. Emplrs. Safety Ass'n v. Lexington Diagnostic Ctr., 2008 Ky. App. LEXIS 285 (Ky. Ct. App. Aug. 29, 2008).

Workers’ Compensation Board correctly found that the Kentucky Employers Safety Association was responsible for an employee’s reasonable and necessary medical treatment under KRS 342.020(1), because contact with blood and other body fluids alone was sufficient to constitute a physical injury for the purposes of KRS 342.0011(1); there is an existing protocol for determining if there is any permanent change for which a screening process is recommended by the Occupational Safety and Health Administration, and to deny medical benefits incurred as a result of a process that would detect any disease contracted and possibly be life saving is contrary to the humanitarian and beneficent purposes of the Act. Ky. Emplrs. Safety Ass'n v. Lexington Diagnostic Ctr., 2008 Ky. App. LEXIS 285 (Ky. Ct. App. Aug. 29, 2008).

Employer’s argument that medical expenses paid to a worker’s compensation benefits claimant were subject to a $3,500 cap under former KRS 342.020 was improperly accepted because the amendments in 1964 and 1972 removing the statutory cap on future medical expenses represented a remedial, procedural change in the law. Schmidt v. S. Cent. Bell, 340 S.W.3d 591, 2011 Ky. App. LEXIS 88 (Ky. Ct. App. 2011).

12. — Work Related.

Where question in case was whether subsequent injury occurred because of original injury and thus arose from a work-related injury making employer liable and there was conflicting testimony and Administrative Law Judge (ALJ) based his findings on acceptance of testimony of doctor who believed the subsequent injury was a result of the original injury, since the appellate court was of the opinion that such evidence was of substantial quality to support the ALJ’s decision, it was bound by the ALJ’s decision. Addington Resources v. Perkins, 947 S.W.2d 421, 1997 Ky. App. LEXIS 54 (Ky. Ct. App. 1997).

As a claimant’s congenital scoliosis was asymptomatic and required no treatment until it was aggravated by a work-related back injury, an administrative law judge erred in denying her benefits for medical treatment of the scoliosis without determining whether it had been temporarily or permanently aroused by the work-related injury. If the latter, she was entitled to benefits; if the former, she could recover benefits only for treatment of the scoliosis while it was temporarily aroused. Finley v. DBM Techs., 217 S.W.3d 261, 2007 Ky. App. LEXIS 35 (Ky. Ct. App. 2007).

After an administrative law judge found claimant’s injuries to be work-related and ordered her employer to pay all medical benefits under KRS 342.020 , claimant failed to timely submit her Form 114 requests for reimbursement of medical expenses within 60 days of the date the expenses were incurred as required by 803 Ky. Admin. Regs. 25:096, § 11. Therefore, her expenses were non-compensable. Garno v. Solectron USA, 329 S.W.3d 301, 2010 Ky. LEXIS 293 ( Ky. 2010 ).

13. —Waiver.

In order for a waiver of future medical benefits to be effective, consideration for that waiver must be direct on the face of the settlement and may not simply be implied from some other activity. Huff Contr. v. Sark, 12 S.W.3d 704, 2000 Ky. App. LEXIS 13 (Ky. Ct. App. 2000).

Dismissal of a worker’s post-award claim for medical benefits for depression was proper because KRS 342.185 and KRS 342.270(1) required a claim to be filed within two (2) years of the date of the accident and required all known causes of action to be joined or waived, and although the worker knew of her depression condition during the initial proceeding, she failed to raise it in her workers’ compensation claim. Ramsey v. Sayre Christian Vill. Nursing Home, 239 S.W.3d 56, 2007 Ky. LEXIS 239 ( Ky. 2007 ).

ALJ was required to reconsider sanctions against an employer who refused to pay for an employee’s shoulder surgery and who failed to file a medical dispute or a motion to reopen, considering the employer’s obligations under KRS 342.310(1) and 803 Ky. Admin. Regs. 25:012, § 2(1)(a). Richey v. Perry Arnold, Inc., 391 S.W.3d 705, 2012 Ky. LEXIS 30 ( Ky. 2012 ).

14. — Burden of Proof.

Because this section allows an employer to avoid those medical bills which it can prove were: 1.) unreasonable or unnecessary, and 2.) received no more than 30 days before its motion, it is within an ALJ’s authority to raise the issue of the 30-day period regardless of whether the worker does. Mitee Enters. v. Yates, 865 S.W.2d 654, 1993 Ky. LEXIS 163 ( Ky. 1993 ).

This section shifts to an employer the burden to prove that contested medical expenses are unreasonable or unnecessary and also places on the employer the affirmative burden to prove that the contested medical bills were received more than 30 days before the motion to reopen was filed. The Supreme Court rejected the argument that the 30-day period set forth in this section is, in effect, a statute of limitations which constitutes an affirmative defense that must be specifically pleaded by the worker. Mitee Enters. v. Yates, 865 S.W.2d 654, 1993 Ky. LEXIS 163 ( Ky. 1993 ).

Where there was no stipulation as to when a medical bill was received, the issue of whether the bill was received within the 30-day period would come within the scope of a dispute over its reasonableness or necessity because the date a disputed bill was received is a necessary element of the employer’s proof. Mitee Enters. v. Yates, 865 S.W.2d 654, 1993 Ky. LEXIS 163 ( Ky. 1993 ).

15. — Travel Expenses.

Legislature intended that an employer must reimburse an injured employee’s reasonable post-award travel expenses incurred in obtaining medical treatment. C & L Constr. v. Cannon, 884 S.W.2d 647, 1994 Ky. LEXIS 95 ( Ky. 1994 ).

16. — Chiropractic Services.

The effect of the enactment of KRS 342.019 was to provide chiropractic services to employees covered by the Workers’ Compensation Act and paid for under the workers’ compensation provisions of KRS Chapter 342. This result overcame the provisions of this section, which limited payment to medical treatment as defined by statute. Moss v. Holloway Constr. Co., 644 S.W.2d 331, 1982 Ky. LEXIS 326 ( Ky. 1982 ).

Where claimant received work-related injury prior to effective date (June 17, 1978) of KRS 342.019 and was awarded right to compensation for expenses required for treatment of disability, he was entitled to recover from employer the amount of money expended for chiropractic services received after the effective date of KRS 342.019 since that section applies to injuries sustained prior to its effective date. Moss v. Holloway Constr. Co., 644 S.W.2d 331, 1982 Ky. LEXIS 326 ( Ky. 1982 ).

Claim that the employer was responsible for payment of chiropractic expenses incurred after a cut-off date because the treatments were providing relief to claimant and thereby could be considered reasonable under this section, failed where evidence showed that over time the treatments became counterproductive. Ausmus v. Pierce, 894 S.W.2d 631, 1995 Ky. LEXIS 3 ( Ky. 1995 ).

17. — Worsening of Condition.

Since this section does not exempt an employer from liability for any portion of a worker’s medical expenses in those instances where the work-related injury constitutes a progression or worsening of a prior, active, work-related condition, employer was responsible for the medical expenses necessary for the cure and relief of the arthritic condition in claimant’s knees. Derr Constr. Co. v. Bennett, 873 S.W.2d 824, 1994 Ky. LEXIS 45 ( Ky. 1994 ).

18. — Wife's Services.

Administering medication, massages, heat applications, preparing meals, and assisting in personal needs, such as dressing, certainly pertain to the cure and relief of the effects of the loss of both legs due to simultaneous amputation and thus it logically follows that in-home attendant or nursing services performed by an injured worker’s spouse (or other nonprofessional relative or friend) are compensable if the services are reasonable and necessary for the cure and/or relief from the effects of a work-related injury. What is required is that the services be medically necessary, performed competently, and provide cure and relief from the effects of the injury. Bevins Coal Co. v. Ramey, 947 S.W.2d 55, 1997 Ky. LEXIS 72 ( Ky. 1997 ).

Based on testimony of double amputee’s doctor that wife of amputee served as an aid to the physician when she changed bandages and applied massages and heat to the residual stumps and fact that while she may have served as a companion, cook, and housekeeper prior to the injury when amputee was able to perform these tasks without assistance was immaterial for after the injury he was rendered disabled and required assistance in performing the most basic and personal aspects of human hygiene and sustenance and such limitation on his ability to care for himself rendered these services performed by his wife a matter of necessity and she should be compensated for performing the services. Bevins Coal Co. v. Ramey, 947 S.W.2d 55, 1997 Ky. LEXIS 72 ( Ky. 1997 ).

Since services performed by wife of double amputee would be compensable under this section if performed by other persons, wife should not be disqualified from receiving compensation for performing such services. Bevins Coal Co. v. Ramey, 947 S.W.2d 55, 1997 Ky. LEXIS 72 ( Ky. 1997 ).

Administrative law judge had subject matter jurisdiction to award a workers’ compensation claimant’s wife compensation under KRS 342.315 as KRS 342.020(1) entitled the claimant to caregiver services, and nothing required the wife to be made a party. Speedway/Super Am. v. Elias, 285 S.W.3d 722, 2009 Ky. LEXIS 156 ( Ky. 2009 ).

Caregiver services award under KRS 342.020(1) was based on substantial evidence as: (1) a workers’ compensation claimant sustained severely disabling injuries for which an employer provided some home nursing services from January 1, 2000, through February 1, 2002, and offered the services of an aide; (2) the claimant’s wife testified as to the claimant’s physical and mental conditions and that the claimant’s physicians, therapists, and nurses advised the wife about what services to perform and how to perform them; (3) a doctor agreed that the claimant required 24-hour personal care; (4) the wife had competently provided at least six hours of reasonable care since some point after the injury; and (5) a reasonable payment was $10 per hour. Speedway/Super Am. v. Elias, 285 S.W.3d 722, 2009 Ky. LEXIS 156 ( Ky. 2009 ).

19. — Credit for Voluntary Payments.

Where employer had voluntarily paid some medical expenses, he was entitled to a credit therefor on an award afterward entered by the board and it was error to award the maximum amount of medical allowance against him. Johnson v. J. P. Taylor Co., 211 Ky. 821 , 278 S.W. 169, 1925 Ky. LEXIS 976 ( Ky. 1925 ).

An employer should not be required to pay the medical payments twice. Pierce v. Russell Sportswear Corp., 586 S.W.2d 301, 1979 Ky. App. LEXIS 459 (Ky. Ct. App. 1979).

20. — Credit for Voluntary Overpayment.

Employer voluntarily paying more than amount of his statutory liability for medical, surgical, and hospital treatment of injured employee is not entitled to credit for excess against compensation awarded employee, in absence of such agreement with latter. Blue Grass Mining Co. v. Stamper, 267 Ky. 643 , 103 S.W.2d 112, 1937 Ky. LEXIS 376 ( Ky. 1937 ). See Stearns Coal & Lumber Co. v. Vanover, 262 Ky. 808 , 91 S.W.2d 518, 1936 Ky. LEXIS 104 ( Ky. 1936 ).

Undisputed evidence that employer acted voluntarily, without agreement with injured employee, in making payment exceeding its statutory liability for medical and hospital expenses presented only law question, reviewable by court, as to employer’s right to credit for excess against compensation awarded employee. Blue Grass Mining Co. v. Stamper, 267 Ky. 643 , 103 S.W.2d 112, 1937 Ky. LEXIS 376 ( Ky. 1937 ).

Where evidence showed agreement by employee to reimburse employer for cost of medical, surgical and hospital treatment furnished by employer in excess of statutory liability, employer was entitled to have such amount credited against compensation award. Harlan Collieries Co. v. Johnson, 308 Ky. 89 , 212 S.W.2d 540, 1948 Ky. LEXIS 849 ( Ky. 1948 ) (decision prior to 1972 amendment).

21. — Payments from Collateral Sources.

A compensation carrier may not deny claims over a protracted period of time in the hope that they will be paid by insurance or some other source and then seek to avoid the payment directed by the board or the courts by contending that the expenses which the law requires them to pay have been previously paid by collateral sources. Bryan v. Henderson Electric Co., 566 S.W.2d 823, 1978 Ky. App. LEXIS 540 (Ky. Ct. App. 1978).

If the medical expenses have been previously paid by another source under circumstances which would give rise to subrogation under the collateral source rule, the employer may defend a motion to enforce the award by furnishing the court with that proof. Pierce v. Russell Sportswear Corp., 586 S.W.2d 301, 1979 Ky. App. LEXIS 459 (Ky. Ct. App. 1979).

The mere fact of payment by other insurance is not, of itself, a defense to an action to enforce an award, rather payment from such other insurance must have been made under a policy which excludes payment for conditions arising out of or in the course of employment or otherwise providing for a subrogation of payments, and this is an affirmative defense on the employer which means the burden is not on the claimant to prove that his expenses were not paid. Pierce v. Russell Sportswear Corp., 586 S.W.2d 301, 1979 Ky. App. LEXIS 459 (Ky. Ct. App. 1979).

Employer is not relieved of the payment of medical bills under KRS 342.020(1) merely because the same bills have already been paid by another insurer, absent evidence that the payor retained a right of subrogation which could subject the employer to double payment. Samples v. Cincinnati Ins. Co., 2003 Ky. App. LEXIS 306 (Ky. Ct. App. Dec. 5, 2003), aff'd in part and rev'd in part, 192 S.W.3d 311, 2006 Ky. LEXIS 139 ( Ky. 2006 ).

22. — Liability of Special Fund.

The special fund has no liability for medical expense. Pierce v. Russell Sportswear Corp., 586 S.W.2d 301, 1979 Ky. App. LEXIS 459 (Ky. Ct. App. 1979).

The term “employer” cannot be construed to include the special fund because the language of the relevant statutes and authorities treat employers and the special fund as separate and distinct entities. Claude N. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 1983 Ky. App. LEXIS 304 (Ky. Ct. App. 1983).

Since this section is a more specific statute than the statute which sets forth the general definition of the word “compensation” (now KRS 342.0011(14)), the provisions of this section clearly must be deemed to govern the issue of the special fund’s liability for medical expenses. Claude N. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 1983 Ky. App. LEXIS 304 (Ky. Ct. App. 1983).

The special fund is not liable for medical expenses. Allied Corp. v. Hornsby, 661 S.W.2d 480, 1983 Ky. App. LEXIS 350 (Ky. Ct. App. 1983).

This section and KRS 342.1202 (now repealed) did not authorize special fund liability where Administrative Law Judge determined that it was the unnecessary surgery which caused claimant’s total disability and award was not based, in whole or in part, on a preexisting disease or condition of the back. Transport Assocs. v. Butler, 892 S.W.2d 296, 1995 Ky. LEXIS 27 ( Ky. 1995 ).

23. — Challenge.

Employer who refused to pay medical expenses submitted by an employee whose period of temporary total disability had ended was a “complaining party” and, therefore, had the burden of challenging the medical expenses through a motion to reopen. Phillip Morris, Inc. v. Poynter, 786 S.W.2d 124, 1990 Ky. App. LEXIS 33 (Ky. Ct. App. 1990), limited, Toyota Motor Mfg. v. Lawson, 2009 Ky. App. LEXIS 224 (Ky. Ct. App. Nov. 6, 2009).

Employer’s failure to file a motion to reopen challenging employee’s medical bills constituted a waiver of its right to object to bills which had not been paid within the 30-day statutory limit. Phillip Morris, Inc. v. Poynter, 786 S.W.2d 124, 1990 Ky. App. LEXIS 33 (Ky. Ct. App. 1990), limited, Toyota Motor Mfg. v. Lawson, 2009 Ky. App. LEXIS 224 (Ky. Ct. App. Nov. 6, 2009).

In a dispute where an employer is challenging the compensability of medical treatment the employer is the complaining party and carries the burden of proving the treatment to be unnecessary. National Pizza Co. v. Curry, 802 S.W.2d 949, 1991 Ky. App. LEXIS 11 (Ky. Ct. App. 1991).

The employer must raise the issue of compensability of medical treatment with the board or the right to object is waived. National Pizza Co. v. Curry, 802 S.W.2d 949, 1991 Ky. App. LEXIS 11 (Ky. Ct. App. 1991).

Employer was equitably estopped from contesting improperly billed treatment for which it had paid workers’ compensation benefits without complaint for many years; however, the arrangement could not continue because it violated KRS 342.020(1), 342.035(2) and the fee dispute ended the claimant’s reliance on the employer’s conduct. Sullivan v. Wolf Creek Collieries, 294 S.W.3d 474, 2009 Ky. App. LEXIS 167 (Ky. Ct. App. 2009).

Where an employee moved to reopen an award based on the worsening of the employee’s work-related knee injury and filed a prospective motion to compel the employer to authorize surgery, it was unnecessary for the employer to reopen the award separately and, absent a bill for services rendered, the employer was not estopped from denying treatment. Toyota Motor Mfg. v. Lawson, 2009 Ky. App. LEXIS 224 (Ky. Ct. App. Nov. 6, 2009), rev'd, 330 S.W.3d 452, 2010 Ky. LEXIS 286 ( Ky. 2010 ).

Board was authorized pursuant to KRS 342.285 and KRS 342.290 to overrule the administrative law judge’s finding that the employee was not entitled to KRS 342.020(1) future medical benefits for a shoulder injury that the employee sustained while working for the employer, despite the fact that the employee seemed to have healed after undergoing surgery. Under KRS 342.020(1), the employee was entitled to reasonable and necessary medical treatment at the time of the injury and thereafter during disability, assuming the employee could show disability, without regard to the duration of income benefits. Kroger v. Ligon, 338 S.W.3d 269, 2011 Ky. LEXIS 68 ( Ky. 2011 ).

24. Awards.

Until an award has been rendered, an employer is under no obligation to pay any compensation, and all issues, including medical benefits, are justiciable; this section applies to medical statements received by an employer after an ALJ has determined that said bills are owed by the employer. R.J. Corman R.R. Constr. v. Haddix, 864 S.W.2d 915, 1993 Ky. LEXIS 168 ( Ky. 1993 ).

Worker whose injury produces a worsening of impairment may reopen in order to seek temporary total disability benefits (TTD), regardless of whether the previous impairment rose to the level that warranted permanent income benefits or whether the period of any previously-awarded income benefits has expired; this presents no conflict with KRS 342.730(4), which terminates a worker’s entitlement to all income benefits, including TTD, upon a worker’s eligibility for old-age social security retirement. Radco Asbestos Specialists, Inc. v. Lyons, 295 S.W.3d 75, 2009 Ky. LEXIS 187 ( Ky. 2009 ).

25. — Evidence.

Compensation board review is limited to determining whether the decision of the administrative law judge was supported by substantial evidence. Addington Resources v. Perkins, 947 S.W.2d 421, 1997 Ky. App. LEXIS 54 (Ky. Ct. App. 1997).

Administrative law judge did not err in denying future medical expenses for an employee’s fractured wrist and fractured scapula because substantial medical evidence indicated these injuries had fully healed, their disabling effects were purely transient, and future medical treatment was unforeseen by treating physicians. Greene v. Paschall Truck Lines, 239 S.W.3d 94, 2007 Ky. App. LEXIS 416 (Ky. Ct. App. 2007).

26. — Findings of Fact.

The findings of fact of the Workers’ Compensation Board that gave only the “bare bones” of the case were insufficient to support the conclusions of law and judgment that the claimant was entitled to compensation. Kentland Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47, 1988 Ky. App. LEXIS 2 (Ky. Ct. App. 1988).

27. — Modification.

The pervading policy is that awards may be changed in light of circumstances warranting such changes, but awards may not be modified capriciously or whimsically. Fayette County Board of Education v. Phillips, 439 S.W.2d 319, 1969 Ky. LEXIS 370 ( Ky. 1969 ).

Despite the fact that the ALJ erred in failing to make an essential finding of fact regarding the date medical bills were received and in ordering the employer to pay all bills incurred more than 30 days before the motion was filed, the employer failed to petition for reconsideration of these patent factual and legal errors and was foreclosed from raising them on appeal. Mitee Enters. v. Yates, 865 S.W.2d 654, 1993 Ky. LEXIS 163 ( Ky. 1993 ).

28. — Compensation.

Even if awards of retraining incentive benefits (RIB) are not considered to be awards of disability compensation or income benefits, they nevertheless fall within the definition of “compensation” awards, for purposes of the medical benefits statute, as other services provided in KRS Chapter 342; it follows, therefore, that an employer which is obligated to pay RIB benefits is also obligated to pay, in accordance with this section, for medical treatment reasonably required either at the time of the award or in the future even if it is true that at the time of the award no medical treatment was required or even available to cure, relieve or treat the effects of the claimant’s occupational disease. Peabody Coal Co. v. Hicks, 824 S.W.2d 411, 1992 Ky. LEXIS 112 ( Ky. 1992 ).

29. — — Remand.

It is proper for an administrative law judge (ALJ), on remand, to award medical benefits, when the ALJ who adjudicated the original claim found a work-related injury but did not award medical benefits. Mountain Clay, Inc. v. Frazier, 988 S.W.2d 503, 1998 Ky. App. LEXIS 103 (Ky. Ct. App. 1998).

While an administrative law judge (ALJ) found that a workers’ compensation claimant suffered a spinal injury that was not compensable but entitled her to future medical benefits under KRS 342.020(1), the ALJ failed to make specific findings as to why her injury merited an award of future medical benefits. Thus, the case was remanded to the ALJ for further proceedings. White v. Great Clips, 259 S.W.3d 501, 2008 Ky. App. LEXIS 223 (Ky. Ct. App. 2008).

29.5. —Time limits.

Workers’ Compensation Board properly reversed and remanded an administrative law judge’s denial of compensation because the mandatory deadlines specified in by statute and regulation only applied post-award, whether the award was final or interlocutory, and the employee was not required to submit medical expenses until an award was entered. Wonderfoil, Inc. v. Russell, 2020 Ky. App. LEXIS 69 (Ky. Ct. App. June 5, 2020).

30. Private Cause of Action.

Violation of KRS 342.020 does not give rise to an independent cause of action in federal court to enforce it. McBroom v. Ky. League of Cities Ins. Serv., 2006 U.S. Dist. LEXIS 3532 (W.D. Ky. Jan. 26, 2006).

Injured employee did not state a claim against government officials and insurance companies under KRS 342.020 because one of the insurance companies paid the employee’s medical expenses and total temporary disability. Even if there were a private right of action available to enforce KRS 342.020 , the employee did not allege facts sufficient to support such a claim. McBroom v. Ky. League of Cities Ins. Serv., 2006 U.S. Dist. LEXIS 3532 (W.D. Ky. Jan. 26, 2006).

31. Standard of Review On Appeal.

In worker’s compensation case the standard of review on appeal is whether there was substantial evidence to support the finding of the fact-finder and where there is conflicting evidence regarding questions of fact, the Administrative Law Judge’s determination cannot be disturbed. Addington Resources v. Perkins, 947 S.W.2d 421, 1997 Ky. App. LEXIS 54 (Ky. Ct. App. 1997).

32. Selection of Pharmacy.

Workers' Compensation Board properly reversed the sanctions assessed against a self-insurer group because the group had reasonable grounds to bring a medical dispute and seek a determination of whether a pharmacy was considered a medical provider. Steel Creations v. Injured Workers' Pharm., 2016 Ky. App. LEXIS 38 (Ky. Ct. App. Mar. 25, 2016), aff'd in part, vacated in part, 532 S.W.3d 145, 2017 Ky. LEXIS 362 ( Ky. 2017 ).

Workers' Compensation Board properly affirmed a finding by the chief administrative law judge that pharmacies were “medical providers” because the Board had interpreted the term to include pharmacies since 1996 and an injured worker's right to choose his own medical provider extended to his selection of a pharmacy. Steel Creations v. Injured Workers' Pharm., 2016 Ky. App. LEXIS 38 (Ky. Ct. App. Mar. 25, 2016), aff'd in part, vacated in part, 532 S.W.3d 145, 2017 Ky. LEXIS 362 ( Ky. 2017 ).

Cited:

Consolidation Coal Co.'s Receivers v. Patrick, 254 Ky. 671 , 72 S.W.2d 51, 1934 Ky. LEXIS 135 ( Ky. 1934 ); Black Mountain Corp. v. Stewart, 272 Ky. 140 , 113 S.W.2d 1141, 1938 Ky. LEXIS 94 ( Ky. 1938 ); Atlas Coal Co. v. Moore, 298 Ky. 767 , 184 S.W.2d 76, 1944 Ky. LEXIS 990 ( Ky. 1944 ); Ratliff v. Cubbage, 314 Ky. 716 , 236 S.W.2d 944, 1951 Ky. LEXIS 732 ( Ky. 1951 ); Pridemore v. Pridemore, 249 S.W.2d 774, 1952 Ky. LEXIS 86 1 ( Ky. 1952 ); Bituminous Cas. Corp. v. Johnson, 259 S.W.2d 448, 1953 Ky. LEXIS 950 ( Ky. 1953 ); Reliford v. Eastern Coal Corp., 260 F.2d 447, 1958 U.S. App. LEXIS 5104 (6th Cir. 1958); National Stores, Inc. v. Hester, 393 S.W.2d 603, 1965 Ky. LEXIS 241 ( Ky. 1965 ); Patterson v. Appalachian Regional Hospital, Inc., 419 S.W.2d 562, 1967 Ky. LEXIS 166 ( Ky. 1967 ); Pargas Co. v. Hagan, 428 S.W.2d 779, 1968 Ky. LEXIS 728 ( Ky. 1968 ); Brown Badgett, Inc. v. Calloway, 675 S.W.2d 389, 1984 Ky. LEXIS 251 ( Ky. 1984 ); Commonwealth v. Workers' Compensation Bd., 697 S.W.2d 540, 1985 Ky. App. LEXIS 652 (Ky. Ct. App. 1985); Ford Motor Co. v. Stewart, 762 S.W.2d 817, 1988 Ky. App. LEXIS 132 (Ky. Ct. App. 1988); Peabody Coal Co. v. Goforth, 857 S.W.2d 167, 1993 Ky. LEXIS 87 ( Ky. 1993 ); Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 2003 Ky. LEXIS 86 ( Ky. 2003 ); Sears Roebuck & Co. v. Dennis, 131 S.W.3d 351, 2004 Ky. App. LEXIS 62 (Ky. Ct. App. 2004); Sayre Christian Vill. Nursing Home v. Ramsey, — S.W.3d —, 2006 Ky. App. LEXIS 392 (Ky. Ct. App. 2006); White v. Great Clips, — S.W.3d —, 2008 Ky. App. LEXIS 208 (Ky. Ct. App. 2008); Flat Rock Furniture v. Neeley, 2016 Ky. App. LEXIS 143 (Ky. Ct. App. Aug. 26, 2016).

Opinions of Attorney General.

“Medical provider” under KRS 342.020 does not include a pharmacy for purposes of employee choice, so that the right to select medical providers does not limit an employer’s or insurer’s ability to make agreements with pharmacies for reimbursement below the fee schedule; such agreements, however, can only bind pharmacies that are parties thereto. OAG 09-011 .

Research References and Practice Aids

Kentucky Bench & Bar.

Hendy, Payment of Medical Benefits for the Injured Worker: Is the Current System in Need of Refinement?, Vol. 56, No. 4, Fall 1992, Ky. Bench & Bar 28.

Jones, Occupational Disease — Six Years Later, Vol. 58, No. 1, Winter 1994, Ky. Bench & Bar 7.

Schabell, 1994 Workers’ Compensation Changes — A Plaintiff’s Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 17.

Jones, A Defense Perspective of the Kentucky Workers’ Compensation Reform Legislation (House Bill 928), Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 20.

Pearlman, Workplace Injuries: Medical Benefits, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 27.

Kentucky Law Journal.

Segal, Analysis of the 1960 Amendments to the Kentucky Workmen’s Compensation Law, 49 Ky. L.J. 225 (1960).

Segal, Processing a Workmen’s Compensation Case, 49 Ky. L.J. 493 (1961).

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Miller, A Climate Ripe for Abuse: The Role of Kentucky’s Workers’ Compensation Law in Perpetuating Drug Abuse in the Appalachian Region., 93 Ky. L.J. 273 (2004/2005).

Northern Kentucky Law Review.

Comments, Kentucky Workmen’s Compensation Benefits — Apportionment and Computation, 6 N. Ky. L. Rev. 91 (1979).

King, Workers’ Compensation Update 1992-1993, 21 N. Ky. L. Rev. 329 (1994).

Kemp & Kemp, Kentucky Workers’ Compensation Law Update: Issues Facing Employers, Employees, Medical Providers, Insurers and Practitioners as House Bill 1 Continues to Evolve, 26 N. Ky. L. Rev. 67 (1999).

2012 Kentucky Survey Issue: Article: Determining Who Gets the Windfall: Recent Developments of the Collateral Source Rule in Kentucky, 39 N. Ky. L. Rev. 63 (2012).

ALR

Insured’s receipt of or right to workmen’s compensation benefits as affecting recovery under accident, hospital, or medical expense policy. 40 A.L.R.3d 1012.

Tort liability of workers’ compensation insurer for wrongful delay or refusal to make payments due. 8 A.L.R.4th 902.

342.021. Employer’s duty to furnish copies of examination or treatment report — Employe’s duty if doctor chosen by him. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 93, effective June 15, 1952) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973.

342.025. Hernia. [Repealed.]

Compiler’s Notes.

This section (4884: amend. Acts 1948, ch. 64, § 3; 1970, ch. 6, § 2) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973.

342.030. Improper physician or treatment. [Repealed.]

Compiler’s Notes.

This section (4885) was repealed by Acts 1970, ch. 6, § 6.

342.033. Medical evidence — Limitation — Form.

In a claim for benefits, no party may introduce direct testimony from more than two (2) physicians without prior consent from the administrative law judge. The motion requesting additional testimony shall clearly demonstrate the need for such additional testimony. A party may introduce direct testimony from a physician through a written medical report. The report shall become a part of the evidentiary record, subject to the right of an adverse party to object to the admissibility of the report and to cross-examine the reporting physician. The commissioner shall promulgate administrative regulations prescribing the format and content of written medical reports.

History. Enact. Acts 1987 (Ex. Sess.), ch. 1, § 28, effective October 26, 1987; 1994, ch. 181, Part 5, § 18, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 53, effective December 12, 1996; 2000, ch. 514, § 3, effective July 14, 2000; 2010, ch. 24, § 1781, effective July 15, 2010.

NOTES TO DECISIONS

1. Cost of Cross-Examination.

Administrative due process does not require that the cost of cross-examination be borne by the proponent of the direct examination. Union Underwear Co. v. Scearce, 896 S.W.2d 7, 1995 Ky. LEXIS 35 (Ky.), cert. denied, 516 U.S. 869, 116 S. Ct. 187, 133 L. Ed. 2d 125, 1995 U.S. LEXIS 6173 (U.S. 1995).

Cited:

R.J. Corman R.R. Constr. v. Haddix, 864 S.W.2d 915, 1993 Ky. LEXIS 168 ( Ky. 1993 ); Miller v. Arch of Kentucky, 918 S.W.2d 748, 1996 Ky. App. LEXIS 42 (Ky. Ct. App. 1996); Adams v. NHC Healthcare, — S.W.3d —, 2005 Ky. App. LEXIS 205 (Ky. Ct. App. 2005); Adams v. NHC Healthcare, 199 S.W.3d 163, 2006 Ky. LEXIS 201 ( Ky. 2006 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

Schabell, 1994 Workers’ Compensation Changes — A Plaintiff’s Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 17.

Kentucky Law Journal.

Murchison, Treating Physicians as Expert Witnesses in Compensation Systems: The Public Health Connection, 90 Ky. L.J. 891 (2001-02).

342.035. Administrative regulations — Medical fee schedule — Review and updating — Action for excess fees — Effect of failure to submit to or follow surgical or medical treatment or advice — Certification to commissioner — Audit — Utilization review — Report — Copies of records — Practice parameters and evidence-based guidelines — Formulary — Medical fee schedule for registered nurse first assistants.

  1. Periodically, the commissioner shall promulgate administrative regulations to adopt a schedule of fees for the purpose of ensuring that all fees, charges, and reimbursements under KRS 342.020 and this section shall be fair, current, and reasonable and shall be limited to such charges as are fair, current, and reasonable for similar treatment of injured persons in the same community for like services, where treatment is paid for by general health insurers. In determining what fees are reasonable, the commissioner may also consider the increased security of payment afforded by this chapter. On or before November 1, 1994, and on July 1 every two (2) years thereafter, the schedule of fees contained in administrative regulations promulgated pursuant to this section shall be reviewed and updated, if appropriate. Within ten (10) days of April 4, 1994, the commissioner shall execute a contract with an appropriately qualified consultant pursuant to which each of the following elements within the workers’ compensation system are evaluated; the methods of health care delivery; quality assurance and utilization mechanisms; type, frequency, and intensity of services; risk management programs; and the schedule of fees contained in administrative regulation. The consultant shall present recommendations based on its review to the commissioner not later than sixty (60) days following execution of the contract. The commissioner shall consider these recommendations and, not later than thirty (30) days after their receipt, promulgate a regulation which shall be effective on an emergency basis, to effect a twenty-five percent (25%) reduction in the total medical costs within the program.
  2. No provider of medical services or treatment required by this chapter, its agent, servant, employee, assignee, employer, or independent contractor acting on behalf of any medical provider, shall knowingly collect, attempt to collect, coerce, or attempt to coerce, directly or indirectly, the payment of any charge, for services covered by a workers’ compensation insurance plan for the treatment of a work-related injury or occupational disease, in excess of that provided by a schedule of fees, or cause the credit of any employee to be impaired by reason of the employee’s failure or refusal to pay the excess charge. In addition to the penalty imposed in KRS 342.990 for violations of this subsection, any individual who sustains damages by any act in violation of the provisions of this subsection shall have a civil cause of action in Circuit Court to enjoin further violations and to recover the actual damages sustained by the individual, together with the costs of the lawsuit, including a reasonable attorney’s fee.
  3. Where these requirements are furnished by a public hospital or other institution, payment thereof shall be made to the proper authorities conducting it. No compensation shall be payable for the death or disability of an employee if his or her death is caused, or if and insofar as his disability is aggravated, caused, or continued, by an unreasonable failure to submit to or follow any competent surgical treatment or medical aid or advice.
  4. The commissioner shall, by December 1, 1994, promulgate administrative regulations to adopt a schedule of fees for the purpose of regulating charges by medical providers and other health care professionals for testimony presented and medical reports furnished in the litigation of a claim by an injured employee against the employer. The workers’ compensation medical fee schedule for physicians, 803 KAR 25:089, having an effective date of February 9, 1995, shall remain in effect until July 1, 1996, or until the effective date of any amendments promulgated by the commissioner, whichever occurs first, it being determined that this administrative regulation is within the statutory grant of authority, meets legislative intent, and is not in conflict with the provisions of this chapter. The medical fee schedule and amendments shall be fair, current, and reasonable and otherwise comply with this section.
    1. To ensure compliance with subsections (1) and (4) of this section, the commissioner shall promulgate administrative regulations by December 31, 1994, which require each insurance carrier, self-insured group, and self- insured employer to certify to the commissioner the program or plan it has adopted to ensure compliance. (5) (a) To ensure compliance with subsections (1) and (4) of this section, the commissioner shall promulgate administrative regulations by December 31, 1994, which require each insurance carrier, self-insured group, and self- insured employer to certify to the commissioner the program or plan it has adopted to ensure compliance.
    2. In addition, the commissioner shall periodically have an independent audit conducted by a qualified independent person, firm, company, or other entity hired by the commissioner, in accordance with the personal service contract provisions contained in KRS 45A.690 to 45A.725 , to ensure that the requirements of subsection (1) of this section are being met. The independent person, firm, company, or other entity selected by the commissioner to conduct the audit shall protect the confidentiality of any information it receives during the audit, shall divulge information received during the audit only to the commissioner, and shall use the information for no other purpose than the audit required by this paragraph.
    3. The commissioner shall promulgate administrative regulations governing medical provider utilization review activities conducted by an insurance carrier, self-insured group, or self-insured employer pursuant to this chapter. Utilization review required under administrative regulations may be waived if the insurance carrier, self-insured group, or self-insured employer agrees that the recommended medical treatment is medically necessary and appropriate or if the injured employee elects not to proceed with the recommended medical treatment.
    4. Periodically, or upon request, the commissioner shall report to the Interim Joint Committee on Labor and Industry of the Legislative Research Commission or to the corresponding standing committees of the General Assembly, as appropriate, the degree of compliance or lack of compliance with the provisions of this section and make recommendations thereon.
    5. The cost of implementing and carrying out the requirements of this subsection shall be paid from funds collected pursuant to KRS 342.122 .
  5. The commissioner may promulgate administrative regulations incorporating managed care or other concepts intended to reduce costs or to speed the delivery or payment of medical services to employees receiving medical and related benefits under this chapter.
  6. For purposes of this chapter, any medical provider shall charge only its customary fee for photocopying requested documents. However, in no event shall a photocopying fee of a medical provider or photocopying service exceed fifty cents ($0.50) per page. However, a medical provider shall not charge a fee when the initial copy of medical records is provided to the injured worker or his or her attorney in response to a written request pursuant to KRS 422.317 . In addition, there shall be no charge for reviewing any records of a medical provider, during regular business hours, by any party who is authorized to review the records and who requests a review pursuant to this chapter.
    1. The commissioner shall develop or adopt practice parameters or evidence-based treatment guidelines for medical treatment for use by medical providers under this chapter, including but not limited to chronic pain management treatment and opioid use, and promulgate administrative regulations in order to implement the developed or adopted practice parameters or evidenced-based treatment guidelines on or before December 31, 2019. The commissioner may adopt any parameters for medical treatment as developed and updated by the federal Agency for Health Care Policy Research, or the commissioner may adopt other parameters for medical treatment which are developed by qualified bodies, as determined by the commissioner, with periodic updating based on data collected during the application of the parameters. (8) (a) The commissioner shall develop or adopt practice parameters or evidence-based treatment guidelines for medical treatment for use by medical providers under this chapter, including but not limited to chronic pain management treatment and opioid use, and promulgate administrative regulations in order to implement the developed or adopted practice parameters or evidenced-based treatment guidelines on or before December 31, 2019. The commissioner may adopt any parameters for medical treatment as developed and updated by the federal Agency for Health Care Policy Research, or the commissioner may adopt other parameters for medical treatment which are developed by qualified bodies, as determined by the commissioner, with periodic updating based on data collected during the application of the parameters.
    2. The commissioner shall develop or adopt a pharmaceutical formulary for medications prescribed for the cure of and relief from the effects of a work injury or occupational disease and promulgate administrative regulations to implement the developed or adopted pharmaceutical formulary on or before December 31, 2018.
    3. Any provider of medical services under this chapter who has followed the practice parameters or treatment guidelines or formularies developed or adopted and implemented pursuant to this subsection shall be presumed to have met the appropriate legal standard of care in medical malpractice cases regardless of any unanticipated complication that may thereafter develop or be discovered.
    1. Notwithstanding any other provision of law to the contrary, the medical fee schedule adopted under subsection (4) of this section shall require all worker’s compensation insurance carriers, worker’s compensation self-insured groups, and worker’s compensation self-insured employers to provide coverage and payment for surgical first assisting services to registered nurse first assistants as defined in KRS 216B.015 . (9) (a) Notwithstanding any other provision of law to the contrary, the medical fee schedule adopted under subsection (4) of this section shall require all worker’s compensation insurance carriers, worker’s compensation self-insured groups, and worker’s compensation self-insured employers to provide coverage and payment for surgical first assisting services to registered nurse first assistants as defined in KRS 216B.015 .
    2. The provisions of this subsection apply only if reimbursement for an assisting physician would be covered and a registered nurse first assistant who performed the services is used as a substitute for the assisting physician. The reimbursement shall be made directly to the registered nurse first assistant if the claim is submitted by a registered nurse first assistant who is not an employee of the hospital or the surgeon performing the services.

HISTORY: 4886: amend. Acts 1987 (Ex. Sess.), ch. 1, § 6, effective January 4, 1988; 1994, ch. 181, Part 5, § 19, effective April 4, 1994; 1996, ch. 332, § 2, effective July 15, 1996; 1996, ch. 355, § 5, effective July 15, 1996; 2005, ch. 7, § 35, effective March 1, 2005; 2007, ch. 121, § 1, effective June 26, 2007; 2010, ch. 24, § 1782, effective July 15, 2010; 2018 ch. 40, § 2, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). This statute was amended in Section 2 of 2018 Ky. Acts ch. 40. Subsection (2) of Section 20 of that Act reads, “Sections 2, 4, and 5 and subsection (7) of Section 13 of this Act are remedial and shall apply to all claims irrespective of the date of injury or last exposure, provided that, as applied to any fully and finally adjudicated claim, the amount of indemnity ordered or awarded shall not be reduced and the duration of medical benefits shall not be limited in any way.”

(7/15/96). This section was amended by 1996 Ky. Acts chs. 332 and 355 which are in conflict. Under KRS 446.250 , Acts ch. 332, which was last enacted by the General Assembly, prevails.

NOTES TO DECISIONS

  1. Medical Fees.
  2. Medical Advice.
  3. — Failure to Follow.
  4. — — Burden of Proof.
  5. — — Reasonableness.
  6. — — Conflicting Advice.
  7. — — Risk of Life or Additional Disability.
  8. — — Effect on Award.
  9. Jurisdiction.
  10. Utilization Review Program.
1. Medical Fees.

Nothing in this section prevented employer from contracting for services of medical doctor to render additional services at reasonable fees to employees entitled to compensation over and above services prescribed by this section. Salyers v. Kenmont Coal Co., 226 Ky. 655 , 11 S.W.2d 705, 1928 Ky. LEXIS 150 ( Ky. 1928 ).

Employer was equitably estopped from contesting improperly billed treatment for which it had paid workers’ compensation benefits without complaint for many years; however, the arrangement could not continue because it violated KRS 342.020(1), 342.035(2) and the fee dispute ended the claimant’s reliance on the employer’s conduct. Sullivan v. Wolf Creek Collieries, 294 S.W.3d 474, 2009 Ky. App. LEXIS 167 (Ky. Ct. App. 2009).

2. Medical Advice.

Before the question of whether an injured employee should submit to an operation can be considered by the Workers’ Compensation Board, a bona fide offer to bear the expense of an operation must have been made by the employer, and the employee must have had an opportunity to consult physicians or surgeons of his own selection in order to test for himself the advisability of the proposed operation. Black Star Coal Co. v. Surgener, 297 Ky. 653 , 181 S.W.2d 53, 1944 Ky. LEXIS 794 ( Ky. 1944 ).

Once it is determined that a hernia is compensable, an employee is entitled to his compensation just as any other injured employee if he submits to an operation that is not “more than ordinarily safe.” North East Coal Co. v. Charles, 308 Ky. 558 , 215 S.W.2d 275, 1948 Ky. LEXIS 998 ( Ky. 1948 ).

If the medical testimony indicates a corrective operation can lessen claimant’s disability and the prospects of failure are minimal and the danger to health is minimal, then the operation must be undergone or all rights to compensation are forfeited under this section. Hefley v. E. I. Du Pont De Nemours & Co., 424 S.W.2d 396, 1968 Ky. LEXIS 452 ( Ky. 1968 ).

It is necessary to set forth two elements to establish an affirmative defense pursuant to this section: 1) failure to follow medical advice and 2) the failure must be unreasonable. A third factor is whether the unreasonable failure caused disability. Luttrell v. Cardinal Aluminum Co., 909 S.W.2d 334, 1995 Ky. App. LEXIS 181 (Ky. Ct. App. 1995).

3. — Failure to Follow.

Employee who treated burn as he had prior burns resulting from similar accidents without serious results was not guilty of such unreasonable failure to submit to or follow any competent medical advice as to defeat award of compensation for his death. B. F. Avery & Sons v. Carter, 205 Ky. 548 , 266 S.W. 50, 1924 Ky. LEXIS 171 ( Ky. 1924 ).

Occasional walks or doing of light chores contrary to advice to “keep off the injured knee” is not sufficient to make this section applicable. Department of Highways v. Manning, 288 Ky. 570 , 156 S.W.2d 854, 1941 Ky. LEXIS 145 ( Ky. 1941 ).

Where employee had been discharged from hospital with his injured leg in cast when both the drainage from the leg and his abnormal temperature had practically ceased and employee, upon recurrence of the drainage and subsequent infection, refused to return to hospital, reduction in amount awarded him was justified because one third of his disability was caused by his refusal to cooperate with the doctor or the hospital staff. Fayette-Jellico Coal Co. v. Simms, 298 Ky. 729 , 183 S.W.2d 947, 1944 Ky. LEXIS 981 ( Ky. 1944 ).

Where injured employee who was injured in accident that arose out of his employment sustained a second injury, since the first injury was a highly contributing factor in causing the second accident and employee made every effort to comply with his physician’s instructions, his widow should not be penalized by the unfortunate outcome, and should receive full compensation for the death of her husband. Beech Creek Coal Co. v. Cox, 314 Ky. 743 , 237 S.W.2d 56, 1951 Ky. LEXIS 742 ( Ky. 1951 ).

It was proper for the board to consider the failure of the claimant to carry out the treatment which his doctor prescribed as bearing on the extent and duration of this occupational disability. South 41 Lumber Co. v. Gibson, 438 S.W.2d 343, 1969 Ky. LEXIS 399 ( Ky. 1969 ).

The claimant’s failure to follow medical advice authorized a reduction from 100% occupational disability. South 41 Lumber Co. v. Gibson, 438 S.W.2d 343, 1969 Ky. LEXIS 399 ( Ky. 1969 ).

Where uncontroverted medical evidence established that corrective surgery was needed and that such would not endanger the claimant’s life or health and that the prospects were good for a successful result and would expedite the claimant’s chances to work again, the board was required by law to order the claimant to undergo the surgery or terminate his benefits for failure to comply. Gennett Lumber Co. v. Sizemore, 441 S.W.2d 429, 1969 Ky. LEXIS 320 ( Ky. 1969 ).

Since this section contemplates specific advice as distinguished from general admonition to reduce obesity and also advice concerning treatment of the injury or disease, it being immediate cause of disability, employee’s failure to follow medical advice as to diet to reduce his obesity should not deprive employee of his compensation for the period of such failure. Proven Products Sales & Service v. Crutcher, 464 S.W.2d 800, 1971 Ky. LEXIS 497 ( Ky. 1971 ).

Where there was medical testimony that the claimant would have made a full recovery if he had done the exercises prescribed, the evidence favorable to the worker’s claim of compensable permanent disability was not so strong as to compel such a finding. Sanderson v. Secrest Pipe Coating Co., 465 S.W.2d 65, 1971 Ky. LEXIS 432 ( Ky. 1971 ).

Where the evidence is conflicting as to whether a claimant’s present disability was caused, or seriously aggravated, by his failure to submit to or follow competent medical aid or advice, the board’s finding as to whether the claimant is allowed benefits under subsection (2) of this section will be allowed to stand. Cowden Mfg. Co. v. Fultz, 472 S.W.2d 679, 1971 Ky. LEXIS 207 ( Ky. 1971 ).

Where employee had a severe reaction to multiple bee stings he received when his bulldozer scraped the dirt from a nest of yellow jackets, where doctor gave employee a shot containing benadryl and a steroid and specifically told employee not to drive for the remainder of the day and gave him written instructions to that effect, and where employee rejected coworker’s offer to take him home, employee was barred from receiving any income benefits or medical expenses for injuries he sustained when he became unconscious and had a one-vehicle accident while driving himself home from work because of his failure to follow reasonable medical advice. Allen v. Glenn Baker Trucking, 875 S.W.2d 92, 1994 Ky. LEXIS 38 ( Ky. 1994 ).

The language of the second sentence of subsection (3) of this section means that an award shall be reduced proportionately to the extent that the failure to follow medical advice contributed to the disability. Luttrell v. Cardinal Aluminum Co., 909 S.W.2d 334, 1995 Ky. App. LEXIS 181 (Ky. Ct. App. 1995).

Where claimant suffered a work-related injury to her leg but refused to follow certain medical advice and medical testimony was unanimous that physical therapy would have improved her condition even though none of the physicians expressed an opinion as to the extent to which her refusal to follow medical treatment added to her disability, it was the administrative law judge’s prerogative to transpose the evidence available to a finding of disability. Luttrell v. Cardinal Aluminum Co., 909 S.W.2d 334, 1995 Ky. App. LEXIS 181 (Ky. Ct. App. 1995).

In a workers' compensation case, there was substantial evidence that a claimant had a permanent psychological impairment rating where evidence controverted the basis for an alternative causation opinion, it could have been reasonably inferred that the psychological condition had stabilized and that he had reached maximum medical improvement, and, because the employer did not seek an order to allowing it to choose a treating physician or a reduction of benefits, it could not complain at this juncture that the employee did not receive treatment or testing suggested by a doctor. The claimant's failure to seek psychological/psychiatric treatment did not bar an assignment of a permanent impairment rating. Martin County Coal Co./Pilgrim Mining Co. v. Goble, 449 S.W.3d 362, 2014 Ky. LEXIS 616 ( Ky. 2014 ).

4. — — Burden of Proof.

Subsection (2) (now (3)) of this section is an affirmative defense placing the burden of proof on the employer to show both failure to follow medical advice and that such failure was unreasonable. Teague v. South Cent. Bell, 585 S.W.2d 425, 1979 Ky. App. LEXIS 440 (Ky. Ct. App. 1979).

5. — — Reasonableness.

An employee’s refusal to submit to tender treatment, whether medical or surgical, is “unreasonable” if the treatment is free from danger to life and health and free from extraordinary suffering and, according to the best medical or surgical opinion, offers a reasonable prospect of restoration or relief from disability. Fordson Coal Co. v. Palko, 282 Ky. 397 , 138 S.W.2d 456, 1940 Ky. LEXIS 157 ( Ky. 1940 ).

Whether injured employee’s refusal to undergo operation is unreasonable is a question of fact, and if there is any proof to sustain the finding of the board, neither the Circuit Court nor the Court of Appeals should disturb that finding. Fordson Coal Co. v. Palko, 282 Ky. 397 , 138 S.W.2d 456, 1940 Ky. LEXIS 157 ( Ky. 1940 ).

Where employee’s only disability consisted of overlapping of bone in one toe which could be remedied by amputation of the toe, his refusal to submit to amputation was unreasonable, and therefore his compensation would be limited to amount allowable for loss of toe, and he could not recover for partial disability to body as a whole. Hardy-Burlingham Min. Co. v. Smith, 305 Ky. 819 , 205 S.W.2d 1021, 1947 Ky. LEXIS 937 ( Ky. 1947 ).

Where injured employee had submitted to one unsuccessful operation on his knee, was very nervous, complained of trouble with his heart, and second operation could not be guaranteed to be helpful, employee was not unreasonable in refusing to submit to second operation. Pioneer Coal Co. v. Sparks, 249 S.W.2d 725, 1952 Ky. LEXIS 844 ( Ky. 1952 ).

An injured employee’s refusal to submit to an operation is unreasonable if it appears the operation is of a simple character not involving serious suffering or danger and will result in substantial physical improvement. United Electric Coal Co. v. Adams, 299 S.W.2d 246, 1956 Ky. LEXIS 42 ( Ky. 1956 ).

Where there is a difference of expert opinion as to the danger or as to the result of such an operation, the injured employee’s refusal to submit thereto is not unreasonable. United Electric Coal Co. v. Adams, 299 S.W.2d 246, 1956 Ky. LEXIS 42 ( Ky. 1956 ).

Refusal to submit to psychiatric treatment for “compensation neurosis” was unreasonable where there was no evidence treatment might be harmful or cause even material discomfort. Commonwealth, Dep't of Highways v. Lindon, 380 S.W.2d 247, 1964 Ky. LEXIS 297 ( Ky. 1964 ).

Where the evidence, even though presented through only one medical witness, did not establish that the prospects of unsuccessful results were “minimal,” the board was not required to accept as fact, nor to find as a matter of law, that the claimant’s refusal to submit to surgery was unreasonable. Beth-Elkhorn Corp. v. Epling, 450 S.W.2d 814, 1970 Ky. LEXIS 462 ( Ky. 1970 ).

Where the evidence showed that the deceased employee had followed such advice concerning medical treatment as he was given, although he had refused recommended hospitalization, but failed to show he was made completely aware of the gravity of his condition, the employer failed to carry its burden of proof, and the Board clearly erred in holding there was an unreasonable failure to follow medical advice. Teague v. South Cent. Bell, 585 S.W.2d 425, 1979 Ky. App. LEXIS 440 (Ky. Ct. App. 1979).

Advice given to employee by doctor not to drive a vehicle, after employee was given a shot containing benadryl and a steroid to counteract his severe reaction to multiple bee stings, was the type of “advice” this section intended to embrace. Allen v. Glenn Baker Trucking, 875 S.W.2d 92, 1994 Ky. LEXIS 38 ( Ky. 1994 ).

Refusal to submit to treatment is unreasonable if it is free from danger to life and health and extraordinary suffering, and, according to the best medical or surgical opinion, offers a reasonable prospect of restoration or relief from the disability. Luttrell v. Cardinal Aluminum Co., 909 S.W.2d 334, 1995 Ky. App. LEXIS 181 (Ky. Ct. App. 1995).

6. — — Conflicting Advice.

Where one physician advised an operation for injured employee and another advised against it, the refusal of the operation was not unreasonable so as to bar him from compensation under this section. Wallins Creek Collieries Co. v. Hicks, 216 Ky. 262 , 287 S.W. 713, 1926 Ky. LEXIS 890 ( Ky. 1926 ).

The courts will not require a patient to follow the advice of one doctor in preference to another. Kentucky-Jellico Coal Co. v. Lee, 289 Ky. 821 , 158 S.W.2d 385, 1942 Ky. LEXIS 517 ( Ky. 1942 ).

Where there was a substantial contrariety of evidence, by conflicting medical opinion, as to the hazard and result of an operation, the refusal of the injured employee to undergo operation to attempt to repair injury was reasonable. Kentucky-Jellico Coal Co. v. Lee, 289 Ky. 821 , 158 S.W.2d 385, 1942 Ky. LEXIS 517 ( Ky. 1942 ).

The rule is that an injured employee’s refusal to submit to an operation is unreasonable if it appears that an operation of a simple character, not involving serious suffering or danger, will result in substantial physical improvement but, where there is a difference of expert opinion as to the danger or result of such an operation, the injured employee’s refusal to submit thereto is not unreasonable. Black Star Coal Co. v. Surgener, 297 Ky. 653 , 181 S.W.2d 53, 1944 Ky. LEXIS 794 ( Ky. 1944 ). See Robertson & Harper Constr. Co. v. Isaac, 344 S.W.2d 614, 1961 Ky. LEXIS 240 ( Ky. 1961 ).

An injured employee is under no duty to submit to an operation if there is a difference in expert medical opinion as to whether it is dangerous or if there is a difference of such opinion as the beneficial results to be derived therefrom. Melcher v. Drummond Mfg. Co., 312 Ky. 588 , 229 S.W.2d 52, 1950 Ky. LEXIS 710 ( Ky. 1950 ).

If there is a difference of expert opinion as to (a) the danger or (b) the result of an operation, the employee’s refusal to submit to it cannot be held unreasonable as a matter of law against a decision of the board which in effect has declined to find it so as a matter of fact. Bethlehem Mines Corp. v. Hall, 379 S.W.2d 58, 1964 Ky. LEXIS 219 ( Ky. 1964 ).

7. — — Risk of Life or Additional Disability.

A patient has the right to remain in his present helpless condition insofar as earning a livelihood is concerned in preference to taking a chance upon additional disability which might result in an endeavor to cure his present condition. Kentucky-Jellico Coal Co. v. Lee, 289 Ky. 821 , 158 S.W.2d 385, 1942 Ky. LEXIS 517 ( Ky. 1942 ).

Courts will not force a litigant to again risk his life in order that the company legally bound to compensate him may be given an opportunity to reduce its liability. Kentucky-Jellico Coal Co. v. Lee, 289 Ky. 821 , 158 S.W.2d 385, 1942 Ky. LEXIS 517 ( Ky. 1942 ).

Where the claimant had been unemployed for a substantial period, had been unable to qualify for any supplemental income assistance, and had a family to support and where the employer, with full knowledge that the claimant had filed an earlier claim for benefits based on silicosis, actually encouraged the claimant to return to employment in underground mining, it was not unreasonable for the claimant to do so despite advice to the contrary from his physicians. Yocom v. Hayden, 566 S.W.2d 776, 1978 Ky. App. LEXIS 527 (Ky. Ct. App. 1978).

8. — — Effect on Award.

An award for partial disability should be initially computed as if failure to follow medical advice were not a factor, then once the correct figure is reached it should be raised, if necessary, to the statutory minimum, finally the figure reached should then be proportionately reduced according to the degree to which the Board has found that the disability was caused, prolonged or aggravated by the conditions set out in this section. Elmendorf Farms v. Goins, 593 S.W.2d 81, 1979 Ky. App. LEXIS 499 (Ky. Ct. App. 1979).

9. Jurisdiction.

Only the Workers’ Compensation Board has jurisdiction to determine the reasonableness of medical expenses. Hale v. Nugent Sand Co., 657 S.W.2d 246, 1983 Ky. App. LEXIS 320 (Ky. Ct. App. 1983).

Where a workers’ compensation claimant brought an action in the Circuit Court alleging the employer’s failure to pay a reasonable medical bill, the Circuit Court erred in not dismissing the proceeding for want of jurisdiction, because exclusive jurisdiction over the issue lay with the Workers' Compensation Board. Brown Badgett, Inc. v. Calloway, 675 S.W.2d 389, 1984 Ky. LEXIS 251 ( Ky. 1984 ).

10. Utilization Review Program.

Exhaustion of the utilization review administrative procedure is not required in order to make medical costs compensable under the workers’ compensation law. E-Town Quarry v. Goodman, 12 S.W.3d 708, 2000 Ky. App. LEXIS 15 (Ky. Ct. App. 2000).

Cited:

Lawson v. Harlan Wallins Coal Corp., 253 S.W.2d 860, 1952 Ky. LEXIS 1125 ( Ky. 1952 ); Parrott v. S. A. Healy Co., 290 S.W.2d 798, 1956 Ky. LEXIS 344 ( Ky. 1956 ); Commonwealth v. Workers’ Compensation Bd., 697 S.W.2d 540, 1985 Ky. App. LEXIS 652 (Ky. Ct. App. 1985); Westvaco Corp. v. Fondaw, 698 S.W.2d 837, 1985 Ky. LEXIS 282 ( Ky. 1985 ); Central Ky. Steel v. Wise, 19 S.W.3d 657, 2000 Ky. LEXIS 73 ( Ky. 2000 ); Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 2003 Ky. LEXIS 86 ( Ky. 2003 ); Toyota Motor Mfg. v. Lawson, — S.W.3d —, 2009 Ky. App. LEXIS 224 (Ky. Ct. App. 2009).

Research References and Practice Aids

Kentucky Bench & Bar.

Hendy, Payment of Medical Benefits for the Injured Worker: Is the Current System in Need of Refinement?, Vol. 56, No. 4, Fall 1992, Ky. Bench & Bar 28.

Schabell, 1994 Workers’ Compensation Changes — A Plaintiff’s Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 17.

Jones, A Defense Perspective of the Kentucky Workers’ Compensation Reform Legislation (House Bill 928), Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 20.

Kentucky Law Journal.

Kentucky Law Survey, Basil, Workers’ Compensation, 69 Ky. L.J. 687 (1980-81).

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Northern Kentucky Law Review.

Comments, Kentucky Workmen’s Compensation Benefits — Apportionment and Computation, 6 N. Ky. L. Rev. 91 (1979).

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Medical Malpractice, § 136.00.

342.038. Employer to keep record of injuries — Reports required to be filed.

  1. Every employer subject to this chapter shall keep a record of all injuries, fatal or otherwise, received by his employees in the course of their employment. Within one (1) week after the occurrence and knowledge, as provided in KRS 342.185 to 342.200 , of an injury to an employee causing his absence from work for more than one (1) day, a report thereof shall be made to the department in the manner directed by the commissioner through administrative regulations. An employer’s insurance carrier or other party responsible for the payment of workers’ compensation benefits shall be responsible for making the report to the Department of Workers’ Claims within one week of receiving the notification referred to in subsection (3) of this section.
  2. The report shall contain the name, nature, and location of the business of the employer and name, age, sex, wages, and occupation of the injured employee, and shall state the date and hour of the accident causing the injury, the nature and cause of the injury, and any other information required by the commissioner.
  3. Every employer subject to this chapter shall report to its workers’ compensation insurance carrier or the party responsible for the payment of workers’ compensation benefits any work-related injury or disease or alleged work-related injury or disease within three (3) working days of receiving notification of the incident or alleged incident.
  4. Every employer or insurer subject to this chapter shall file additional reports covering specifically voluntary payments and settlements, and any other reports required by the commissioner by administrative regulation for the determination of the promptness of voluntary payment and validity and fairness of agreements. In addition, the commissioner may require additional information as may be necessary to comply with a federal statute or regulation or any state statute.
  5. Upon the termination of the disability of the injured employee, or if the disability extends beyond a period of sixty (60) days, then also at the expiration of that period, the employer shall make a supplementary report to the commissioner on blanks procured from the department for the purpose.

History. Enact. Acts 1976, ch. 160, § 6; 1980, ch. 104, § 1, effective July 15, 1980; 1994, ch. 181, Part 14, § 68, effective April 4, 1994; 1996, ch. 355, § 6, effective July 15, 1996; 2010, ch. 24, § 1783, effective July 15, 2010.

NOTES TO DECISIONS

  1. Absence From Work.
  2. Failure to Provide Notice.
1. Absence From Work.

Subsection (1) of this section requires an employer to notify Workers’ Compensation Board within one week after the occurrence and knowledge, as provided in KRS 342.185 to 342.200 , of an injury to an employee causing his absence from work for more than one day; such employer’s obligation is not triggered merely by the notice of an accident as provided in KRS 342.185 to KRS 342.200 , but by said notice coupled with an absence from work more than one day. When the employee is not absent from work until some time after the accident, the employer may be legitimately unaware that the absence is due to the previous occupational injury. Newberg v. Hudson, 838 S.W.2d 384, 1992 Ky. LEXIS 129 ( Ky. 1992 ).

2. Failure to Provide Notice.

The limitations period in KRS 342.185 was tolled because the employer failed to comply with the notice requirements of this section or KRS 342.040 . H. E. Neumann Co. v. Lee, 975 S.W.2d 917, 1998 Ky. LEXIS 109 ( Ky. 1998 ).

Employer’s failure to provide notice did not bar it from asserting a statute of limitations defense as the claimant was not entitled to notice of the applicable statute of limitations since he had not missed work due to his work-related injuries for more than two (2) weeks before the period of limitations expired, and the employer was not shown to have acted in bad faith concerning his claim. J & V Coal Co. v. Hall, 62 S.W.3d 392, 2001 Ky. LEXIS 214 ( Ky. 2001 ).

Employer’s failure to comply with the notification requirements of KRS 342.040 and this section tolled the statute of limitations of KRS 342.185 , regardless of whether the employer acted in good faith in conducting its investigation, or whether there was actual prejudice to the claimant. Galownia v. Starlink Satellites, 2002 Ky. App. LEXIS 1565 (Ky. Ct. App. Aug. 2, 2002), aff'd in part and rev'd in part, 2003 Ky. Unpub. LEXIS 125 (Ky. Aug. 21, 2003).

Cited:

Colt Management Co. v. Carter, 907 S.W.2d 169, 1995 Ky. App. LEXIS 161 (Ky. Ct. App. 1995).

Research References and Practice Aids

Kentucky Bench & Bar.

Schabell, 1994 Workers’ Compensation Changes — A Plaintiff’s Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 17.

Jones, A Defense Perspective of the Kentucky Workers’ Compensation Reform Legislation (House Bill 928), Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 20.

Lester, Ensuring the Health Care Worker Can Perform the Essential Functions of Their Position in the Increasingly Restricted Legal Environment Governing Hiring and Disability Accommodation, Volume 75, No. 3, May 2011, Ky. Bench & Bar 10.

342.039. Filing of detailed claim information by each insurance company, self-insured group, and employer carrying its own risk.

Beginning on January 1, 1995, and pursuant to administrative regulations promulgated under KRS Chapter 13A by the commissioner, each insurance company writing workers’ compensation insurance policies in the Commonwealth, every self-insured group, and each employer carrying its own risk shall file in the manner directed by the commissioner, detailed claim information contained in the model regulation developed by the National Association of Insurance Commissioners (NAIC) in conjunction with the International Association of Industrial Accident Boards and Commissions (IAIABC).

History. Enact. Acts 1994, ch. 181, Part 14, § 72, effective April 4, 1994; 2005, ch. 7, § 36, effective March 1, 2005; 2010, ch. 24, § 1784, effective July 15, 2010.

Research References and Practice Aids

Kentucky Bench & Bar.

Jones, A Defense Perspective of the Kentucky Workers’ Compensation Reform Legislation (House Bill 928), Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 20.

342.040. Time of payment of income benefits and retraining incentive benefits — Attorney’s fees for recovery of overdue temporary total disability income benefits — Interest on overdue benefits.

  1. Except as provided in KRS 342.020 , no income benefits shall be payable for the first seven (7) days of disability unless disability continues for a period of more than two (2) weeks, in which case income benefits shall be allowed from the first day of disability. All income benefits shall be payable on the regular payday of the employer, commencing with the first regular payday after seven (7) days after the injury or disability resulting from an occupational disease, with interest at the rate of six percent (6%) per annum on each installment from the time it is due until paid, except that if the administrative law judge determines that the delay was caused by the employee, then no interest shall be due, or determines that a denial, delay, or termination in the payment of income benefits was without reasonable foundation, then the rate of interest shall be twelve percent (12%) per annum. In no event shall income benefits be instituted later than the fifteenth day after the employer has knowledge of the disability or death. Income benefits shall be due and payable not less often than semimonthly. If the employer’s insurance carrier or other party responsible for the payment of workers’ compensation benefits should terminate or fail to make payments when due, that party shall notify the commissioner of the termination or failure to make payments and the commissioner shall, in writing, advise the employee or known dependent of right to prosecute a claim under this chapter.
  2. If overdue temporary total disability income benefits are recovered in a proceeding brought under this chapter by an attorney for an employee, or paid by the employer after receipt of notice of the attorney’s representation, a reasonable attorney’s fee for these services may be awarded. The award of attorney’s fees shall be paid by the employer if the administrative law judge determines that the denial or delay was without reasonable foundation. No part of the fee for representing the employee in connection with the recovery of overdue temporary total disability benefits withheld without reasonable foundation shall be charged against or deducted from benefits otherwise due the employee.
  3. All retraining incentive benefits awarded pursuant to KRS 342.732 shall be payable on the regular payday of the employer, commencing with the second regular payday after the award of the retraining incentive benefit by the administrative law judge becomes final. Retraining incentive benefits shall be due and payable not less often than semimonthly.
  4. Upon written request of the employee, all payments of compensation shall be mailed to the employee at his or her last known address.

HISTORY: 4887: amend. Acts 1948, ch. 64, § 4; 1956, ch. 77, § 4; 1972, ch. 78, § 13; 1982, ch. 7, § 1, effective July 15, 1982; 1987 (Ex. Sess.), ch. 1, § 7, effective October 26, 1987; 1990, ch. 21, § 1, effective July 13, 1990; 1990, ch. 515, § 1, effective July 13, 1990; 1994, ch. 181, Part 15, § 76, effective April 4, 1994; 1996, ch. 355, § 7, effective July 15, 1996; 1996 (1st Ex. Sess.), ch. 1, § 54, effective December 12, 1996; 2000, ch. 514, § 4, effective July 14, 2000; 2010, ch. 24, § 1785, effective July 15, 2010; 2017 ch. 17, § 2, effective June 29, 2017; 2018 ch. 40, § 3, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). This statute was amended in Section 3 of 2018 Ky. Acts ch. 40. Subsection (1) of Section 20 of that Act reads, “Sections 1, 3, and 12 of this Act shall apply to any claim arising from an injury or occupational disease or last exposure to the hazards of an occupational disease or cumulative trauma occurring on or after the effective date of this Act.”

(6/29/2017). 2017 Ky. Acts ch. 17, sec. 4 provided that amendments made to this statute in 2017 Ky. Acts ch. 17, sec. 1 apply to all judgments entered by a court on or after June 29, 2017, the effective date of that Act.

NOTES TO DECISIONS

  1. Interest.
  2. No Limitation Defense.
  3. Duty to Inform.
  4. Retraining Benefit.
  5. Income Benefits.
  6. — Time of Payment.
  7. Disability.
  8. — Permanent and Temporary.
  9. Credit to Employer.
  10. Failure to Timely File Claim.
1. Interest.

Interest on past-due weekly installments was allowed. Hazard Blue Grass Coal Corp. v. Scott, 206 Ky. 759 , 268 S.W. 548, 1925 Ky. LEXIS 1042 ( Ky. 1925 ).

Provision that compensation be payable with interest on each installment from time due until paid is mandatory, and insurer not making payments due under agreement to deceased employee’s minor son until appointment of guardian for him is liable for interest on past-due installments. Maryland Casualty Co. v. Reeves, 254 Ky. 83 , 70 S.W.2d 992, 1934 Ky. LEXIS 25 ( Ky. 1934 ).

Where the employee was found to have sustained a total permanent disability, interest on each installment was payable from the time it was due until paid, rather than from the date the claimant filed his claim, regardless of the fact that the employer had no knowledge of any claim against him until the claim was filed. Campbell v. Young, 478 S.W.2d 712, 1972 Ky. LEXIS 336 ( Ky. 1972 ).

Where the interest rate in effect on unpaid workers’ compensation benefits at the time of the workers’ occupational disability was six percent per annum, the employer could only be assessed interest on unpaid benefits at six percent prior to the effective date (July 15, 1982) of the amendment to this section raising the interest rate to 12%, and at 12% thereafter. Stovall v. Couch, 658 S.W.2d 437, 1983 Ky. App. LEXIS 346 (Ky. Ct. App. 1983).

Because the employer’s arguments challenging an award of temporary total disability benefits were unreasonable, the decision requiring the employer to pay 18% interest on past due temporary total disability payments and attorney’s fees was not an abuse of discretion. Officeware v. Jackson, 247 S.W.3d 887, 2008 Ky. LEXIS 60 ( Ky. 2008 ).

Interest accrued on a lump-sum death benefit under KRS 342.040(1) just as it did on other past-due income benefits awarded under Chapter 342. Bradley v. Commonwealth, 301 S.W.3d 27, 2009 Ky. LEXIS 326 ( Ky. 2009 ).

2. No Limitation Defense.

An employer cannot blatantly disregard its statutory obligation under this section and thereby manufacture the defense of limitation under KRS 342.185 . Frankfort v. Rogers, 765 S.W.2d 579, 1988 Ky. App. LEXIS 156 (Ky. Ct. App. 1988).

The limitations period in KRS 342.185 was tolled because the employer failed to comply with the notice requirements of KRS 342.038 or this section. H. E. Neumann Co. v. Lee, 975 S.W.2d 917, 1998 Ky. LEXIS 109 ( Ky. 1998 ).

Employer’s failure to comply with the notification requirements of KRS 342.038 and this section tolled the statute of limitations of KRS 342.185 , regardless of whether the employer acted in good faith in conducting its investigation, or whether there was actual prejudice to the claimant. Galownia v. Starlink Satellites, 2002 Ky. App. LEXIS 1565 (Ky. Ct. App. Aug. 2, 2002), aff'd in part and rev'd in part, 2003 Ky. Unpub. LEXIS 125 (Ky. Aug. 21, 2003).

KRS 342.010(1) and KRS 342.185(1), operated in tandem and dictated that the employer not be allowed to claim that the employee’s application for benefits was not timely filed. Since the employer did not strictly comply with those statutes because it did not promptly transmit the proper form to the Office of Workers’ Claims (now Department of Workers’ Claims), it transmitted a form that was improperly coded, and the employer’s insurer failed to submit a corrected form, the employer was estopped from claiming that the employee’s failure to file an application within two years of the termination of temporary total disability payments meant that the employee’s current application was not timely filed. Ky. Container Serv. v. Ashbrook, 265 S.W.3d 793, 2008 Ky. LEXIS 185 ( Ky. 2008 ).

Although KRS 342.990 provided civil and criminal penalties for an employer’s failure to comply with KRS 342.040(1) regarding the payment of workers’ compensation benefits, KRS chapter 342 provided no remedy for affected workers like the employee, who was not notified that the employee was required to apply for temporary total disability benefits within two years after the payment of such benefits ended or be barred from receiving them. Thus, the employer was estopped from asserting a statute of limitations defense where the employer’s failure to promptly and properly inform the Office of Workers’ Claims (now Department of Workers’ Claims) that the employer had terminated the employee’s temporary total disability benefits meant that the Office did not notify the employee that the employee only had two (2) years from the date of termination to file an application for such benefits. Ky. Container Serv. v. Ashbrook, 265 S.W.3d 793, 2008 Ky. LEXIS 185 ( Ky. 2008 ).

3. Duty to Inform.

Chapter 413 does not impose an affirmative duty on anyone to notify a potential adverse litigant of the limited period during which suit may be brought, but this section does impose a duty on an employer to inform the board and on the board to inform an injured worker of the employer’s cessation of voluntary payments of benefits. Frankfort v. Rogers, 765 S.W.2d 579, 1988 Ky. App. LEXIS 156 (Ky. Ct. App. 1988).

Subsection (1) of KRS 342.038 requires an employer to notify Workers’ Compensation Board within one week after the occurrence and knowledge, as provided in KRS 342.185 to 342.200 , of an injury to an employee causing his absence from work for more than one day; such employer’s obligation is not triggered merely by the notice of an accident as provided in KRS 342.185 to KRS 342.200 , but by said notice coupled with an absence from work more than one day. When the employee is not absent from work until some time after the accident, the employer may be legitimately unaware that the absence is due to the previous occupational injury. Newberg v. Hudson, 838 S.W.2d 384, 1992 Ky. LEXIS 129 ( Ky. 1992 ).

Where Workers’ Compensation Board did not receive notice, as mandated by this section, that employer had ceased paying injured employee temporary total disability payments (TTD), regardless of who caused the technical deficiency—the carrier, the post office, or the Board, employee, who was in no way to blame for the technical error, was entitled to have the statute of limitation tolled. Ingersoll-Rand Co. v. Whittaker, 883 S.W.2d 514, 1994 Ky. App. LEXIS 113 (Ky. Ct. App. 1994).

An employee, who did not file an application for adjustment of claim within two years following the suspension of such payments, is not responsible for such an error and is entitled to have the limitations tolled, because this section places an affirmative duty upon the employer to notify the board when it ceases to pay benefits, and it is the employer who must bear the loss for such failure. Colt Management Co. v. Carter, 907 S.W.2d 169, 1995 Ky. App. LEXIS 161 (Ky. Ct. App. 1995).

Although employer would ordinarily not be permitted to raise a statute of limitations defense to claimant’s workers’ compensation claim filed beyond the two (2) year limitations period, the employer was not barred from asserting that defense as its failure to file the required form after the employee missed more than one (1) day of work due to a work-related injury did not prevent the workers’ compensation commissioner from notifying the claimant of his right to prosecute a claim; rather, the claimant was not entitled to notice since he had not missed more than two (2) weeks of work due to his injury before the period of limitations expired and the employer had not engaged in bad faith concerning his claim. J & V Coal Co. v. Hall, 62 S.W.3d 392, 2001 Ky. LEXIS 214 ( Ky. 2001 ).

Workers’ compensation claimant’s application for benefits was properly dismissed as she was notified of her employer’s denial of her claim and of the limitations period six (6) weeks after her injury, while she had a reasonable time to file a claim; the claim was not timely and the claimant was not lulled into a false sense of security by the payment of voluntary income benefits. The application of an equitable remedy was not compelled. Patrick v. Christopher E. Health Care, 142 S.W.3d 149, 2004 Ky. LEXIS 193 ( Ky. 2004 ).

Statute regarding the proper methods of notice, which is found at KRS 342.135 , is inapplicable to the Department of Workers’ Claims’ obligation under KRS 342.040(1) to advise the worker of his right to prosecute a claim. Akers v. Pike County Bd. of Educ., 171 S.W.3d 740, 2005 Ky. LEXIS 258 ( Ky. 2005 ).

Since it was undisputed that an employer complied with its duties under KRS 342.040(1), the Department of Workers’ Claims also complied with that statute. Therefore, a worker’s claims were properly dismissed as untimely, even though the worker credibly testified that he did not actually receive the notices provided by the employer and the department. Akers v. Pike County Bd. of Educ., 171 S.W.3d 740, 2005 Ky. LEXIS 258 ( Ky. 2005 ).

Employer notified the workers’ compensation agency under KRS 342.040(1) that an employee’s temporary total disability benefits ended and the agency “advised” the employee under KRS 342.040(1) that he had two (2) years to file a new claim. KRS 342.135 did not apply so the “advice” could be sent by regular mail and the employee’s late claim was properly denied. Akers v. Pike County Bd. of Educ., 171 S.W.3d 740, 2005 Ky. LEXIS 258 ( Ky. 2005 ).

KRS 342.135 is inapplicable to the Workers’ Compensation Department’s obligation under KRS 342.040(1) since KRS 342.135 applies to notices and not to advice. Akers v. Pike County Bd. of Educ., 171 S.W.3d 740, 2005 Ky. LEXIS 258 ( Ky. 2005 ).

Two-year statute of limitation under KRS 342.185 barred the claimant’s workers’ compensation claim, because the employer notified the Department of Workers’ Claims that voluntary benefits had terminated, as required by KRS 342.040 , and the Department mailed a letter to the claimant informing him that the time for filing a benefits claim expired two years from the date benefits ceased; the record did not indicate that the letter was deficient or untimely. Decker v. Control Sys., 2012 Ky. App. LEXIS 236 (Ky. Ct. App. Nov. 2, 2012), aff'd, 2013 Ky. Unpub. LEXIS 69 (Ky. Nov. 21, 2013).

4. Retraining Benefit.

Subsection (1)(a) of KRS 342.732 requires no finding that a worker who has contracted coal workers’ pneumoconiosis be in need of retraining nor, at the time this claim was filed, did it require that the benefit be used for retraining. The benefit simply provides what its title indicates, an incentive for retraining. McKenzie v. Whayne Supply Co., 898 S.W.2d 484, 1995 Ky. LEXIS 56 ( Ky. 1995 ).

The 208-week period contemplated by KRS 342.732(1)(a) must begin on the date upon which the retraining incentive benefit award becomes final and continue, uninterrupted, until it expires. Meade v. Spud Mining, 949 S.W.2d 584, 1997 Ky. LEXIS 65 ( Ky. 1997 ).

In those instances where an award has been appealed, the award becomes final for the purposes of KRS 342.316(1)(b) when the appellate process has been exhausted. Meade v. Spud Mining, 949 S.W.2d 584, 1997 Ky. LEXIS 65 ( Ky. 1997 ) (decided under a prior version of KRS 342.316(1)(b)).

5. Income Benefits.

Workers' Compensation Board properly concluded that interest on a lump-sum death benefit began to accrue at the time of death, as opposed to the date an administrator was appointed by the court to represent the estate in probate, where the decedent's estate came into being at the moment of his death, the employer became responsible for making the lump-sum payment to the estate at the moment of death due to a work-related injury, and the liability existed regardless of whether an administrator had been appointed. Flagship Transp. v. Estate of Keeling, 2015 Ky. App. LEXIS 142 (Ky. Ct. App. Oct. 2, 2015), aff'd, 2016 Ky. Unpub. LEXIS 57 (Ky. Aug. 25, 2016).

6. — Time of Payment.

Subsection (1) of this section prohibits the payment of income benefits for the first seven days of disability unless the disability continues for more than 2 weeks (14 days); the subsection does not prohibit the payment of income benefits for the extent to which the disability extends beyond the seventh day and, therefore, by implication, the payment of benefits beginning on the eighth day of disability is authorized. Pierson v. Lexington Pub. Library, 987 S.W.2d 316, 1999 Ky. LEXIS 23 ( Ky. 1999 ).

7. Disability.
8. — Permanent and Temporary.

Subsection (1) of this section does not distinguish between temporary and permanent disability and, therefore, where a claimant’s disability extends beyond 14 days, he or she is entitled to income benefits from the onset of disability. Pierson v. Lexington Pub. Library, 987 S.W.2d 316, 1999 Ky. LEXIS 23 ( Ky. 1999 ).

9. Credit to Employer.

Where a claimant was awarded permanent total disability benefits, an employer was not entitled to credit for post-injury wages, because the claimant’s wages were “bona fide” since they were paid ostensibly for labor and the evidence did not permit a reasonable finding that the employer intended to pay them in lieu of workers’ compensation benefits. Millersburg Military Inst. v. Puckett, 260 S.W.3d 339, 2008 Ky. LEXIS 102 ( Ky. 2008 ).

10. Failure to Timely File Claim.

Although KRS 342.990 provided civil and criminal penalties for an employer’s failure to comply strictly with KRS 342.040(1), KRS ch. 342 provided no remedy for a workers’ compensation claimant who, unaware of the applicable limitations period, failed to file a timely claim. Hitachi Auto. Prods. USA, Inc. v. Craig, 279 S.W.3d 123, 2008 Ky. LEXIS 238 ( Ky. 2008 ).

Cited:

Reliford v. Eastern Coal Corp., 260 F.2d 447, 1958 U.S. App. LEXIS 5104 (6th Cir. 1958); Dealers Transport Co. v. Thompson, 593 S.W.2d 84, 1979 Ky. App. LEXIS 500 (Ky. Ct. App. 1979); General Electric Co. v. Morris, 670 S.W.2d 854, 1984 Ky. LEXIS 237 ( Ky. 1984 ); Zurich Ins. Co. v. Mitchell, 712 S.W.2d 340, 1986 Ky. LEXIS 275 ( Ky. 1986 ); Eastern Coal Corp. v. Blankenship, 813 S.W.2d 808, 1991 Ky. LEXIS 72 ( Ky. 1991 ); Leeco, Inc. v. Smith, 970 S.W.2d 337, 1998 Ky. LEXIS 102 ( Ky. 1998 ); Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 2003 Ky. LEXIS 86 ( Ky. 2003 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Patterson, Legislative Changes in Workers’ Compensation; The Pendulum Swings, Vol. 46, No. 4, October 1982, Ky. Bench & Bar 30.

Jones, Occupational Disease — Six Years Later, Vol. 58, No. 1, Winter 1994, Ky. Bench & Bar 7.

Kentucky Law Journal.

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

ALR

Tort liability of workers’ compensation insurer for wrongful delay or refusal to make payments due. 8 A.L.R.4th 902.

342.045. Injury out of state to person employed here. [Repealed.]

Compiler’s Notes.

This section (4888) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.670 .

342.050. No employer to be relieved of obligation of this chapter. [Repealed.]

Compiler’s Notes.

This section (4889) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973.

342.055. Remedies when third party is legally liable. [Repealed.]

Compiler’s Notes.

This section (4890: amend. Acts 1948, ch. 64, § 5) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.700 .

NOTES TO DECISIONS

Cited:

Beaver v. Oakley, 279 S.W.3d 527, 2009 Ky. LEXIS 74 ( Ky. 2009 ).

342.060. Liability of contractor and subcontractor. [Repealed.]

Compiler’s Notes.

This section (4891) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.700 .

342.065. Certain minors considered sui juris.

A minor sixteen (16) years of age or over or a minor under sixteen (16) years of age who has procured his employment upon the written certification of his parent, guardian or one having legal authority over him that he is over sixteen (16) years of age shall be considered sui juris for the purposes of this chapter, and no other person shall have cause of action or right to compensation for his injury or death for loss of service on account thereof, by reason of the minority of such employee. If a lump sum of compensation is made to such minor employee, payment shall be made to his guardian. Such certificate shall be in form as follows: “To (name of employer); This is to certify that (name of minor employee), of whom the undersigned is the . . . . . , is over the age of sixteen years. Signed this . . . . . day of . . . . . ” Identification of such signature of the parent, guardian or person having legal authority over such minor employee shall constitute conclusive proof of such procurement of his employment in any hearing or proceeding in which it is material or in issue.

History. 4892.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Legislative Intent.
  3. Certificate.
  4. — False Information.
  5. — Failure to Sign.
  6. — Failure to Procure.
  7. Pleadings.
1. Constitutionality.

The compensation law is not unconstitutional because it makes material changes in the law of parent and child, since there is no constitutional restraint on such action by the legislature. It had the unquestioned power to make such changes in what may be called “the business relations of parent and child” as seemed to it admissible. Greene v. Caldwell, 170 Ky. 571 , 186 S.W. 648, 1916 Ky. LEXIS 126 ( Ky. 1916 ).

This section, providing that a minor “shall be considered sui juris for the purposes of this chapter” except where his employment is in wilful violation of any law, thus empowering him to accept the provisions of the law for compensation thereunder in lieu of the right to sue at law for damages, was constitutional. D. E. Hewitt Lumber Co. v. Brumfield, 196 Ky. 723 , 245 S.W. 858, 1922 Ky. LEXIS 596 ( Ky. 1922 ).

2. Legislative Intent.

In providing that the infant “shall be considered sui juris for the purposes of this chapter,” the intent was to provide a way for an infant to operate under the terms of the law. Sears, Roebuck & Co. v. Broughton, 195 F.2d 95, 1952 U.S. App. LEXIS 2907 (6th Cir. Ky.), cert. denied, 343 U.S. 953, 72 S. Ct. 1047, 96 L. Ed. 1354, 1952 U.S. LEXIS 2089 (U.S. 1952).

3. Certificate.
4. — False Information.

Where minor’s stepfather signed employment certificate certifying minor to be at least 16 years of age, minor became sui juris and was entitled to compensation for injury since, even if stepfather was not minor’s guardian, he had legal authority over minor for purposes of this section. Elkhorn Coal Corp. v. Diets, 225 Ky. 753 , 9 S.W.2d 1100, 1928 Ky. LEXIS 868 ( Ky. 1928 ).

Where 12-year-old minor’s stepfather signed employment certificate certifying minor to be over 16 years of age, this section applied to prevent election to sue to recover damages for minor’s injury after employer paid compensation, because stepfather was same as legal guardian for purposes of this section, making minor sui juris despite age falsification. Elkhorn Coal Corp. v. Diets, 225 Ky. 753 , 9 S.W.2d 1100, 1928 Ky. LEXIS 868 ( Ky. 1928 ).

5. — Failure to Sign.

The fact that parents or guardian of employee did not sign certificate gave employee under 16 years right to bring action at common law, but it was necessary that employee prove that he was employed in known violation of child labor law before he could recover. Ousley v. Hope Engineering & Supply Co., 239 Ky. 714 , 40 S.W.2d 331, 1931 Ky. LEXIS 855 ( Ky. 1931 ).

6. — Failure to Procure.

The failure of an employer operating under the Workers’ Compensation Law to procure a certificate, as required by this section, that the employee is over 16 years of age will not subject the employer to liability, in a common-law action for damages for death or injury of a minor employee, unless the employment was made by the employer in wilful and known violation of the child labor laws. Caldwell v. Jarvis, 299 Ky. 439 , 185 S.W.2d 552, 1945 Ky. LEXIS 432 ( Ky. 1945 ).

Where employee, at time he solicited employment in a stone quarry being operated under the Workers’ Compensation Act, and at the time he signed the compensation register of the employer, represented that he was over 18 years of age, and had the appearance of being that age, but he was in fact under 16 years of age, and the employer did not procure an age certificate as required by this section, employee’s administrator, following death of employee in course of employment, could not recover damages in common-law action against employer without proving that the employment was in wilful and known violation of the child labor laws. Caldwell v. Jarvis, 299 Ky. 439 , 185 S.W.2d 552, 1945 Ky. LEXIS 432 ( Ky. 1945 ).

7. Pleadings.

In a suit for damages for personal injuries alleging that plaintiff was employed by defendant when under the age of 16 and without his parent’s consent, it was error for the court to strike from defendant’s answer a paragraph setting up defense of acceptance of workers’ compensation law and submitting to the jury only the issue of minor plaintiff’s age, unless his employment was in wilful violation of the child labor law. Clark v. Wells-Elkhorn Coal Co., 215 Ky. 128 , 284 S.W. 91, 1926 Ky. LEXIS 640 ( Ky. 1926 ).

Cited:

Riddell’s Adm’r v. Berry, 298 S.W.2d 1, 1956 Ky. LEXIS 31 ( Ky. 1956 ); Patrick v. Highbaugh, 347 S.W.2d 88, 1961 Ky. LEXIS 351 ( Ky. 1961 ).

Research References and Practice Aids

Cross-References.

Age certificate is conclusive evidence of age, KRS 339.370 .

Age certificate issuance to minor under 18, KRS 339.360 .

Proof of age required in obtaining age certificate, KRS 339.360 .

342.070. Compensation in case of death. [Repealed.]

Compiler’s Notes.

This section (4893, 4896: amend. Acts 1946, ch. 37, § 2; 1948, ch. 64, § 6; 1950, ch. 187, § 1; 1952, ch. 182, § 2; 1956, ch. 77, § 5; 1960, ch. 147, § 3; 1964, ch. 192, § 5) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.750 .

342.075. Determination of dependency.

  1. The following persons shall be presumed to be wholly dependent upon a deceased employee:
    1. A surviving spouse upon a decedent whom the surviving spouse had not voluntarily abandoned at the time of the accident, or who having been abandoned by the decedent has not engaged in such conduct since his abandonment as would at common law constitute grounds justifying the abandonment of such wife by her husband or such husband by his wife;
    2. A child or children under the age of sixteen (16) years, or over sixteen (16) years if incapacitated from wage earning, upon the parent with whom such child or children are living, or by whom actually supported, or from whom support is legally required by judgment of a court, at the time of the accident.
  2. In all other cases the relation of dependency in whole or in part shall be determined in accordance with the facts of each case existing at the time of the accident.
  3. No person shall be considered a dependent in any degree unless he is living in the household of the employee at the time of the accident, or unless such person bears to the employee the relation of father, mother, husband, or wife, father-in-law or mother-in-law, grandfather or grandmother, child or grandchild, or brother or sister of the whole or half blood and is actually dependent.

History. 4894: amend. Acts 1950, ch. 187, § 2; 1952, ch. 55; 1952, ch. 182, § 3; 1974, ch. 386, § 60; 1980, ch. 104, § 2, effective July 15, 1980.

NOTES TO DECISIONS

  1. Construction With Other Laws.
  2. Dependency.
  3. — As of Time of Accident.
  4. — Presumption.
  5. — Wholly or Totally.
  6. — Partial.
  7. — — Combined.
  8. — — Measurement.
  9. — Not in Same Household.
  10. — Upon Two Employees.
  11. Wife.
  12. — Voluntarily Abandoned.
  13. — Presumed Totally Dependent.
  14. — Bigamous Relationship.
  15. — — Good Faith.
  16. — — Presumption of Total Dependency.
  17. — Adulterous Relationships.
  18. — Common-Law Marriage.
  19. — Proof of Marriage.
  20. — Marriage Following Award of Benefits.
  21. Child.
  22. — Dependent.
  23. — — Wholly.
  24. — — Degree.
  25. — — Presumption.
  26. — — Proof.
  27. — Support.
  28. — — Actual.
  29. — — By Divorced Parent.
  30. — — In Public Institution.
  31. — Mother Killed.
  32. — Parent’s Status as Employee.
  33. — Sixteen or Older.
  34. — Stepchildren.
  35. — Posthumous.
  36. — Illegitimate.
  37. — Bigamous Relationship.
  38. Parents.
  39. — Wholly or Totally.
  40. — Partially Dependent.
  41. — Foster.
  42. Brothers and Sisters.
  43. Grandchildren.
  44. — Illegitimate.
  45. Aunts and Uncles.
  46. Nephews and Nieces.
  47. Cousins.
1. Construction With Other Laws.

With respect to death benefits for widows, widowers, and children, the provisions of this section were superseded by the enactment of KRS 342.750 and 342.730 ; thus, a widower is entitled to benefits under KRS 342.750 (1)(a) or (b) regardless of dependency. Brusman v. Newport Steel Corp., 17 S.W.3d 514, 2000 Ky. LEXIS 59 ( Ky. 2000 ).

2. Dependency.

“Dependency” means dependency existing at time of accident and the relation of dependency must be determined in accordance with the facts existing at that time. Vogt & Conant Co. v. Boelhauf, 317 S.W.2d 163, 1958 Ky. LEXIS 72 ( Ky. 1958 ).

Where the parents failed to persuade the board that they were dependent upon their deceased son, and the board found that they were not dependent, the decision of the board must stand. Ireland v. Liberty Mut. Ins. Co., 462 S.W.2d 903, 1971 Ky. LEXIS 556 ( Ky. 1971 ).

3. — As of Time of Accident.

The question of dependency existing at the time of the accident is to be determined in the light of prior events and is not to be controlled by an unusual temporary situation occasioned by fortuitous circumstances, so that a deceased son who had been the breadwinner for his mother and her two infant children, although the mother was employed at a small salary which was insufficient to support both herself and them, was held to be their support and they were totally dependent on him. Fordson Coal Co. v. Burke, 219 Ky. 770 , 294 S.W. 497, 1927 Ky. LEXIS 451 ( Ky. 1927 ).

Actual dependency of child on deceased employee at time of accident is prerequisite to compensation, and such dependency does not turn on whether deceased was under legal duty to support child. Franklin Fluorspar Co. v. Bell, 247 Ky. 507 , 57 S.W.2d 481, 1933 Ky. LEXIS 420 ( Ky. 1933 ).

Compensation board is sole judge as to weight and credibility of evidence, and its judgment as to claimant’s dependency on employee will not be disturbed if there is any evidence to sustain it. Fordson Coal Co. v. Lewis, 266 Ky. 70 , 98 S.W.2d 63, 1936 Ky. LEXIS 606 ( Ky. 1936 ).

Dependency is not determined under law by moral or legal obligation of employee to support claimant, but by status employee made and his adherence to relationship thus made and recognized by him and existing and observed at time of injury. United States Coal & Coke Co. v. Sutton, 268 Ky. 405 , 105 S.W.2d 173, 1937 Ky. LEXIS 483 ( Ky. 1937 ).

Even though the minor children of the employee were under the custody of their mother, who had remarried and moved with the children away from this commonwealth, they were presumed to be wholly dependent since they were under the age of 16 at the time of their father’s death, and he was legally required by judgment to provide for their support. Kraft, Inc. v. Turner, 748 S.W.2d 155, 1987 Ky. App. LEXIS 601 (Ky. Ct. App. 1987).

4. — Presumption.

The presumption of dependency in the cases to which it applies is conclusive upon the courts and the Workers' Compensation Board. J. F. Hardymon Co. v. Kaze, 241 Ky. 252 , 43 S.W.2d 678, 1931 Ky. LEXIS 49 ( Ky. 1931 ).

The presumption of dependency under subdivision (1) (a) of this section is conclusive and cannot be defeated or contradicted by extraneous testimony where the dependent meets the criteria of that subdivision and, accordingly, a wife who was working at the time of her husband’s death and had been so employed for 11 years was nonetheless properly held to be 100 percent dependent on the decedent. Yocom v. Hylton, 557 S.W.2d 219, 1977 Ky. App. LEXIS 830 (Ky. Ct. App. 1977).

5. — Wholly or Totally.

Total dependency exists if dependent receives his entire support from deceased employee, regardless of the proportion of employee’s wages contributed to the dependent. Kelse Branch Coal Co. v. Spradlin's Guardian, 222 Ky. 432 , 300 S.W. 892, 1927 Ky. LEXIS 929 ( Ky. 1927 ).

To be “totally dependent” hereunder, one must have received all of his support from deceased employee. James E. Pepper & Co. v. Travis, 260 Ky. 725 , 86 S.W.2d 683, 1935 Ky. LEXIS 547 ( Ky. 1935 ).

Total dependency turned on whether claimants received substantially all their support from decedent, not on amount of his earnings decedent contributed to claimants’ support. Aden Mining Co. v. Kentucky Workmen's Compensation Board, 267 Ky. 529 , 102 S.W.2d 1026, 1937 Ky. LEXIS 356 ( Ky. 1937 ).

Person may be “wholly dependent” on employee within meaning of this section though he may have some slight savings of his own, or some other slight property, or be able to make something by his own services. United States Coal & Coke Co. v. Sutton, 268 Ky. 405 , 105 S.W.2d 173, 1937 Ky. LEXIS 483 ( Ky. 1937 ); Fordson Coal Co. v. Lewis, 266 Ky. 70 , 98 S.W.2d 63, 1936 Ky. LEXIS 606 ( Ky. 1936 ).

6. — Partial.

Partial dependency exists if dependent receives less than his entire support from employee. Kelse Branch Coal Co. v. Spradlin's Guardian, 222 Ky. 432 , 300 S.W. 892, 1927 Ky. LEXIS 929 ( Ky. 1927 ).

7. — — Combined.

In no case can combined dependency of partial dependents exceed 100%. Kelse Branch Coal Co. v. Spradlin's Guardian, 222 Ky. 432 , 300 S.W. 892, 1927 Ky. LEXIS 929 ( Ky. 1927 ).

8. — — Measurement.

A mother and her infant children, being proven partial dependents of deceased employee, were entitled to share in award with widow that proportion which their partial dependency bore to the total dependency of the widow. Noe v. Noe, 229 Ky. 490 , 17 S.W.2d 405, 1929 Ky. LEXIS 780 ( Ky. 1929 ).

Partial dependency, for compensation purposes, is determined by proportion of employee’s earnings contributed to such partial dependent during one year next preceding date of injury, notwithstanding proportion of contributions to total received by claimant. Kentucky Coke Co. v. Baker, 242 Ky. 807 , 47 S.W.2d 721, 1932 Ky. LEXIS 364 ( Ky. 1932 ).

Where employee lived with father and sister on small plot of land and did most of labor in cultivating land and caring for chickens and livestock through which they made a meager existence, and had contributed most of his income to the group for a substantial period of time, the mere fact that during the period of three months immediately preceding his death, when he was employed at steady employment, he only contributed 10% of his wages to the father and sister did not justify the board in limiting their dependency to 10%. In such case the board was ordered to make an award based on 50% dependency. Kenmont Coal Co. v. Clark, 294 Ky. 226 , 171 S.W.2d 242, 1943 Ky. LEXIS 413 ( Ky. 1943 ).

9. — Not in Same Household.

With respect to those not members of the same family, “dependency,” authorizing award of compensation, means something more than the receipt of contributions for which an equivalent is returned. Kentucky Coke Co. v. Baker, 242 Ky. 807 , 47 S.W.2d 721, 1932 Ky. LEXIS 364 ( Ky. 1932 ).

10. — Upon Two Employees.

Compensation may be allowed for death of each of two persons on whom claimant was dependent. J. F. Hardymon Co. v. Kaze, 241 Ky. 252 , 43 S.W.2d 678, 1931 Ky. LEXIS 49 ( Ky. 1931 ).

11. Wife.
12. — Voluntarily Abandoned.

Widow and child whom employee had abandoned were entitled to compensation for his death. Johnson v. Hardy-Burlingham Mining Co., 205 Ky. 752 , 266 S.W. 635, 1924 Ky. LEXIS 227 ( Ky. 1924 ).

Where wife was abandoned by her husband and later instituted an action for divorce but failed to prosecute suit to judgment, and husband never offered to resume marital relations with her, she was conclusively presumed a dependent, notwithstanding after such abandonment she illicitly cohabited with another man and gave birth to an illegitimate child. Layman-Calloway Coal Co. v. Martin, 209 Ky. 690 , 273 S.W. 496, 1925 Ky. LEXIS 579 ( Ky. 1925 ).

Where a wife was so unchaste as to cause her husband to leave her, she was guilty of voluntarily abandoning him so as to bar her from compensation for his death. Ramey v. Portsmouth By-Product Coke Co., 234 Ky. 75 , 27 S.W.2d 415, 1930 Ky. LEXIS 117 ( Ky. 1930 ).

Where compensation board accepted widow’s testimony that separation from her husband was voluntary on part of both of them, it became court’s duty to accept board’s finding and rule widow was not dependent on husband at time of his death. Davis v. Mitchell, 266 Ky. 151 , 98 S.W.2d 474, 1936 Ky. LEXIS 625 ( Ky. 1936 ).

Where employee had abandoned wife or wife was justified in leaving him because of misconduct, abandonment was involuntary on her part, and she is entitled to compensation; but if wife was at fault and husband was legally justified in leaving her, she will not be entitled to compensation. Fuller v. Carrs Fork Coal Co., 280 Ky. 25 , 132 S.W.2d 540, 1939 Ky. LEXIS 68 ( Ky. 1939 ).

13. — Presumed Totally Dependent.

A wife was presumed wholly dependent upon deceased husband, even though he had abandoned her and she had accepted a lump-sum settlement of all claims for support against him or his estate. Jones v. Louisville Gas & Electric Co., 209 Ky. 642 , 273 S.W. 494, 1925 Ky. LEXIS 567 ( Ky. 1925 ).

A wife who had been left in Ireland by husband who had come to America and promised to send for her but failed to do so, and instead became enamored of other women, was conclusively presumed to be dependent on deceased husband, as she had not voluntarily abandoned her husband. Jones v. Louisville Gas & Electric Co., 209 Ky. 642 , 273 S.W. 494, 1925 Ky. LEXIS 567 ( Ky. 1925 ).

Widow of deceased employee was awarded full compensation under this section, notwithstanding she had agreed that she was only 50% dependent upon her husband. Rockhouse Coal Co. v. Collins, 212 Ky. 137 , 278 S.W. 540, 1925 Ky. LEXIS 1089 ( Ky. 1925 ).

When marriage and joint residence is proved, wife will be presumed to be wholly dependent. Andrews v. Kopper Coal Co., 290 Ky. 278 , 161 S.W.2d 52, 1942 Ky. LEXIS 396 ( Ky. 1942 ).

The voluntarily abandoned wife of deceased employee, from whom she had never been divorced, is conclusively presumed to be wholly dependent on him and entitled to compensation, even though she was not actually supported by him at the time of his accidental death. Ritchie v. Katy Coal Co., 313 Ky. 310 , 231 S.W.2d 57, 1950 Ky. LEXIS 880 ( Ky. 1950 ) (decision prior to 1950 amendment).

14. — Bigamous Relationship.

Where claimant married decedent in good faith, being ignorant of existence of decedent’s wife, claimant became decedent’s dependent as one living in his household, and was allowed compensation on that basis, 50% until widow’s remarriage, then 100% until own marriage. Franklin Fluorspar Co. v. Bell, 247 Ky. 507 , 57 S.W.2d 481, 1933 Ky. LEXIS 420 ( Ky. 1933 ).

Where there was some evidence to support compensation board’s finding that claimant’s marriage to already married decedent was in good faith, court had duty to affirm such finding. Black Mountain Corp. v. Cobb, 260 Ky. 662 , 86 S.W.2d 662, 1935 Ky. LEXIS 537 ( Ky. 1935 ).

A deceased employee’s bigamous widow who married believing that employee had been divorced from his wife is entitled to compensation if she was dependent on employee and was living in his household. Fuller v. Carrs Fork Coal Co., 280 Ky. 25 , 132 S.W.2d 540, 1939 Ky. LEXIS 68 ( Ky. 1939 ).

In view of statutory assumption that wives are wholly dependent and since marriage was contracted in good faith such that claimant was lawful wife of deceased husband, evidence that claimant and husband lived together as husband and wife until his death justified board’s finding that claimant was living in decedent’s household at time of accident. Andrews v. Kopper Coal Co., 290 Ky. 278 , 161 S.W.2d 52, 1942 Ky. LEXIS 396 ( Ky. 1942 ).

Bigamous wife and minor child of deceased employee who were not living with employee or being supported by him at time of his death were not entitled to share in compensation award as “dependents.” Ritchie v. Katy Coal Co., 313 Ky. 310 , 231 S.W.2d 57, 1950 Ky. LEXIS 880 ( Ky. 1950 ).

An award of compensation to a bigamous widow is authorized if she entered into the marriage relation in good faith, believing the employee had been divorced from his wife, and if she lived in his household as a dependent. Combs v. Elk Horn Coal Corp., 281 S.W.2d 424, 1955 Ky. LEXIS 196 ( Ky. 1955 ).

15. — — Good Faith.

In absence of evidence to contrary, good faith must be presumed on part of claimant who marries employee not divorced from his first wife. Franklin Fluorspar Co. v. Bell, 247 Ky. 507 , 57 S.W.2d 481, 1933 Ky. LEXIS 420 ( Ky. 1933 ).

A woman living with an employee, in good faith thinking that she is his wife, is entitled to compensation upon his death; but where the woman has an undivorced former spouse living, a heavy burden rests upon her to establish good faith, and in absence of evidence justifying her alleged belief that she had been divorced, she could not recover compensation. Hatfield Campbell-Creek Coal Co. v. Adams, 275 Ky. 744 , 122 S.W.2d 787, 1938 Ky. LEXIS 506 ( Ky. 1938 ).

A woman who, in good faith, married an undivorced married man and who was living with him and was wholly dependent upon him for support at time of his accidental death was entitled to compensation for his death. Ritchie v. Katy Coal Co., 313 Ky. 310 , 231 S.W.2d 57, 1950 Ky. LEXIS 880 ( Ky. 1950 ) (decision prior to 1950 amendment).

Where employee, killed in the course of his employment, had voluntarily abandoned his wife and, without obtaining a divorce, married the woman with whom he was living at time of death, she contracting the marriage in good faith, the abandoned wife and the bigamous widow were entitled to share compensation award equally. Ritchie v. Katy Coal Co., 313 Ky. 310 , 231 S.W.2d 57, 1950 Ky. LEXIS 880 ( Ky. 1950 ) (decision prior to 1950 amendment).

16. — — Presumption of Total Dependency.

A woman who lived with injured employee after marrying him in mistaken belief that her former husband was dead was presumed wholly dependent. Nall v. Wakenva Coal Co., 236 Ky. 598 , 33 S.W.2d 631, 1930 Ky. LEXIS 802 ( Ky. 1930 ).

17. — Adulterous Relationships.

A woman who knowingly lives in adultery with an employee who meets with a fatal accident while at work cannot recover workers’ compensation benefits as his dependent. Jones v. Campbell Co., 353 S.W.2d 208, 1961 Ky. LEXIS 3 ( Ky. 1961 ).

18. — Common-Law Marriage.

Kentucky does not recognize a common-law marriage except in applying this section. Gilbert v. Gilbert, 275 Ky. 559 , 122 S.W.2d 137, 1938 Ky. LEXIS 468 ( Ky. 1938 ).

19. — Proof of Marriage.

When claimant proves marriage to decedent, the burden of disproving its validity falls on employer. Andrews v. Kopper Coal Co., 290 Ky. 278 , 161 S.W.2d 52, 1942 Ky. LEXIS 396 ( Ky. 1942 ).

20. — Marriage Following Award of Benefits.

The wife of a disabled worker was entitled to a continuation of her deceased husband’s disability benefits which were awarded prior to the marriage as given her circumstances under the provisions of subsection (3) of KRS 342.730 . Palmore v. Jones, 774 S.W.2d 434, 1989 Ky. LEXIS 32 ( Ky. 1989 ).

21. Child.

Fact that decedent’s daughters were over 16 years of age with no evidence of inability to earn wages did not preclude finding of total dependency, where they lived in decedent’s home and obtained all their support from him, cause of dependency notwithstanding. Sunfire Coal Co. v. Day, 267 Ky. 716 , 103 S.W.2d 82, 1937 Ky. LEXIS 366 ( Ky. 1937 ).

The adoption of a child terminated his legal relationship to his natural parent, and, therefore, he was not the “child” of the employee under the Workers' Compensation Act. Smith v. Dixie Fuel Co., 566 S.W.2d 156, 1977 Ky. App. LEXIS 912 (Ky. Ct. App. 1977).

22. — Dependent.

When at time of deceased employee’s accident his children did not live with him, had not lived with him for more than four years before his death, and he had not supported them during such period of time, his children were not dependents for purposes of their compensation claims. Franklin Fluorspar Co. v. Bell, 247 Ky. 507 , 57 S.W.2d 481, 1933 Ky. LEXIS 420 ( Ky. 1933 ).

23. — — Wholly.

It being proven that claimant was the widow of deceased employee, and three infant claimants were their children and all of the children were under 16 years of age, they were conclusively presumed to be wholly dependent. Hosman Coal Co. v. Carr, 228 Ky. 786 , 16 S.W.2d 167, 1929 Ky. LEXIS 654 ( Ky. 1929 ).

Even though child claimant was away at school at time of employed father’s death and was able there to earn a few dollars at brief, temporary employment, she nonetheless continued as member of his household and remained totally dependent on him for support, and was thus not deprived of her right to compensation as a dependent. Fordson Coal Co. v. Lewis, 266 Ky. 70 , 98 S.W.2d 63, 1936 Ky. LEXIS 606 ( Ky. 1936 ).

Where father continued to recognize obligation to support child and to make contributions to its support, even though contributions were small, yet if they amounted to more than occasional gifts or mere tokens of affection, child was wholly dependent on father, within meaning of this section. United States Coal & Coke Co. v. Sutton, 268 Ky. 405 , 105 S.W.2d 173, 1937 Ky. LEXIS 483 ( Ky. 1937 ).

24. — — Degree.

A child over 16 years of age is not necessarily excluded from being a total dependent, but he is not entitled to be classed as a total dependent merely because he does not work and in fact receives his entire support from the parent. Cox's Guardian v. Garmeada Coal Co., 291 Ky. 297 , 164 S.W.2d 476, 1942 Ky. LEXIS 229 ( Ky. 1942 ).

Daughter 18 years of age who did not live with father, and who received small income from occasional work as a domestic, was not entitled to compensation as a total dependent. Cox's Guardian v. Garmeada Coal Co., 291 Ky. 297 , 164 S.W.2d 476, 1942 Ky. LEXIS 229 ( Ky. 1942 ).

Where claimant was 15-year-old daughter of woman with whom employee had been living, evidence that claimant’s mother had been earning a monthly income but had sent most of it to her parents in Alabama and had spent nothing on claimant, and that claimant had spent summer vacation with her grandparents and deceased employee had contributed nothing toward her support during her temporary absence except transportation to and from grandparents’ home, was insufficient to establish that claimant was only partially dependent upon employee so as to authorize reduction in compensation award. United States Coal & Coke Co. v. Hudson, 303 Ky. 350 , 197 S.W.2d 778, 1946 Ky. LEXIS 853 ( Ky. 1946 ).

25. — — Presumption.

There is statutory presumption that child under age of 16 is wholly dependent on deceased parent who lived with or actually supported such child at time of accident, and such presumption is conclusive on court and compensation board. Nolan v. Giacomini, 250 Ky. 25 , 61 S.W.2d 1055, 1933 Ky. LEXIS 635 ( Ky. 1933 ).

26. — — Proof.

Court would not disturb authorization of compensation to former wife’s infant claimants by compensation board in view of testimony that deceased sent almost regular contributions to such infants throughout his life. Black Mountain Corp. v. Cobb, 260 Ky. 662 , 86 S.W.2d 662, 1935 Ky. LEXIS 537 ( Ky. 1935 ).

27. — Support.
28. — — Actual.

In order to raise the presumption that a child was dependent upon a deceased parent or stepparent, there must be proof to establish both the relationship and that the child actually lived with or was supported by the deceased. Ramey v. Portsmouth By-Product Coke Co., 234 Ky. 75 , 27 S.W.2d 415, 1930 Ky. LEXIS 117 ( Ky. 1930 ).

Children in custody of mother receiving child support from deceased father were wholly dependent on father even though his contributions were not in such amounts as would meet children’s every need, as question was dependency, not contributions. United States Coal & Coke Co. v. Sutton, 268 Ky. 405 , 105 S.W.2d 173, 1937 Ky. LEXIS 483 ( Ky. 1937 ).

29. — — By Divorced Parent.

Where a divorce judgment had embodied an agreement between the decedent and his wife whereby decedent had agreed to pay to the wife a certain amount each month as maintenance for the son, and the evidence showed that decedent had sent to wife some amount each month and had contributed most of the child’s clothes, the proof was sufficient to sustain the award to the son, although the stepfather also had contributed to the support of the child. Harlan v. Ford, 252 S.W.2d 684, 1952 Ky. LEXIS 1017 ( Ky. 1952 ).

30. — — In Public Institution.

Where child under 16 was in reform school and was not receiving any support from parent, he was not a dependent. Veith v. Patterson, 236 Ky. 845 , 34 S.W.2d 717, 1931 Ky. LEXIS 520 ( Ky. 1931 ).

Where father voluntarily agreed to contribute all he could afford to support of minor children committed with his consent to county charitable institution, the children were, in contemplation of the law, wholly dependent on father for support. Johnson v. Kentucky Color & Chemical Co., 285 Ky. 358 , 147 S.W.2d 686, 1941 Ky. LEXIS 368 ( Ky. 1941 ).

31. — Mother Killed.

Minor children living with mother at time she received fatal injuries in a compensable accident were entitled to compensation as “wholly dependent,” irrespective of fact that their father was primarily obligated to support them and had contributed to their support along with deceased mother. Reynolds Metal Co. v. Glass, 302 Ky. 622 , 195 S.W.2d 280, 1946 Ky. LEXIS 722 ( Ky. 1946 ).

32. — Parent’s Status as Employee.

A dependent child’s right to compensation is based upon deceased parent’s status as an employee, irrespective of whether parent is father or mother or is primarily or secondarily obligated to support child or whether parent contributes all or only part to child’s support. Reynolds Metal Co. v. Glass, 302 Ky. 622 , 195 S.W.2d 280, 1946 Ky. LEXIS 722 ( Ky. 1946 ).

33. — Sixteen or Older.

Question of dependency of decedent’s daughter turned on facts at time of accidental death, and mere fact she became 16 years of age and was not incapacitated for wage earning would not in itself terminate her dependency status. Fordson Coal Co. v. Lewis, 266 Ky. 70 , 98 S.W.2d 63, 1936 Ky. LEXIS 606 ( Ky. 1936 ).

The ability of a child over 16 years of age to earn wages in a proper occupation and actually contribute to his own support necessarily relegates the child to the status of a partial dependent whose compensation for the death of the parent should be determined under KRS 342.070(3) (repealed). Cox's Guardian v. Garmeada Coal Co., 291 Ky. 297 , 164 S.W.2d 476, 1942 Ky. LEXIS 229 ( Ky. 1942 ).

34. — Stepchildren.

The stepchildren of a deceased employee who were dependent upon him at the time of his death were still entitled to compensation on the remarriage of their mother, as children under the age of 16 years who are living in the same household with the parent at the time of the accident are conclusively presumed to be wholly dependent upon the deceased employee. Log Mountain Coal Co. v. Head, 219 Ky. 799 , 294 S.W. 470, 1927 Ky. LEXIS 435 ( Ky. 1927 ).

35. — Posthumous.

A posthumous child was entitled to compensation as a total dependent, notwithstanding apparent requirement of this section that child must have lived with and been supported by parent. Fuller v. Carrs Fork Coal Co., 280 Ky. 25 , 132 S.W.2d 540, 1939 Ky. LEXIS 68 ( Ky. 1939 ).

36. — Illegitimate.

An illegitimate child under 16 who was actually supported by, but not living with, deceased father was, under this section, presumed to be wholly dependent. Lockhart's Guardian v. Bailey Pond Creek Coal Co., 235 Ky. 278 , 30 S.W.2d 955, 1930 Ky. LEXIS 333 ( Ky. 1930 ).

37. — Bigamous Relationship.

Child of bigamous marriage is entitled to compensation if deceased employee recognized his parental responsibility. Fuller v. Carrs Fork Coal Co., 280 Ky. 25 , 132 S.W.2d 540, 1939 Ky. LEXIS 68 ( Ky. 1939 ).

38. Parents.

Compensation board properly denied application of parents of deceased son who was not contributing to parents’ support at time of his death and had not supported them during any part of six (6) months’ absence prior to his death. Hagan v. Mason-Hanger Const. Co., 198 Ky. 326 , 248 S.W. 896, 1923 Ky. LEXIS 460 ( Ky. 1923 ).

The parents of a deceased employee who contributed his earnings of $80.00 per month to them and who, in turn, supported him out of this sum, which contribution only slightly exceeded his support, were only partially dependent upon him, since parents are not in the class of persons conclusively presumed to be dependent upon a deceased employee. The test of dependency was whether such contributions were necessary and dependency need not be total; neither was it necessary that they have no other means of support in order to be partially dependent. Clover Fork Coal Co. v. Ayres, 219 Ky. 326 , 292 S.W. 803, 1927 Ky. LEXIS 318 ( Ky. 1927 ).

A mother and two infant children were dependent on another deceased son where it was shown that the wages of the mother were insufficient to support both herself and two infant children. Fordson Coal Co. v. Burke, 219 Ky. 770 , 294 S.W. 497, 1927 Ky. LEXIS 451 ( Ky. 1927 ).

An award of 65% of deceased employee’s wages for 335 weeks was proper where it was shown that his mother was his sole dependent and was wholly dependent upon him, it being immaterial that she was a nonresident of this state. R. C. Tway Co. v. Fitts, 222 Ky. 644 , 1 S.W.2d 1082, 1928 Ky. LEXIS 222 ( Ky. 1928 ).

In determining dependency of father on minor son, money earned by son and contributed to family funds and used by father to pay lien notes on father’s lots, which constituted a permanent investment and in which the father would earn a profit out of son’s earnings, cannot be considered. Melcroft Coal Co. v. Hicks, 224 Ky. 173 , 5 S.W.2d 1049, 1928 Ky. LEXIS 560 ( Ky. 1928 ).

Where deceased lived with his parents, finding by compensation board that contributions by deceased to his home were not even equal to support and board furnished by his parents bound court to affirm denial of compensation. Wolverine Coal Co. v. Grigsby, 246 Ky. 62 , 54 S.W.2d 604, 1932 Ky. LEXIS 704 ( Ky. 1932 ).

Parents of deceased employee do not belong to the class of persons who are conclusively presumed to be dependent, but their dependency is question of fact to be determined by board. Damron v. Workmen's Compensation Board, 267 Ky. 281 , 102 S.W.2d 23, 1937 Ky. LEXIS 313 ( Ky. 1937 ). See Miller v. Elkhorn Coal Corp., 284 Ky. 737 , 145 S.W.2d 822, 1940 Ky. LEXIS 552 ( Ky. 1940 ).

Board finding of 25% dependency of parents on deceased son was upheld on facts that parents’ farm was small and unproductive, father’s employment was irregular, and father’s earnings were hardly sufficient for support, since parents may be dependent on son who gave them his wages, even though father earned wages which could have supported him and his family. Atlas Coal Co. v. Wylie, 272 Ky. 590 , 114 S.W.2d 1107, 1938 Ky. LEXIS 167 ( Ky. 1938 ).

In action asserting compensation benefits by surviving parents of decedent employee on the basis of 100% dependency where a banker testified as to the father’s substantial estate at a date subsequent to the employee’s death, it could be presumed in the absence of an explanation that the father’s financial condition was the same at the time of the son’s death. Ireland v. Liberty Mut. Ins. Co., 462 S.W.2d 903, 1971 Ky. LEXIS 556 ( Ky. 1971 ).

39. — Wholly or Totally.

The widowed mother of an unmarried employee who made contributions to her support was wholly dependent, although she earned some money by working out. Blue Diamond Coal Co. v. Frazier, 229 Ky. 450 , 17 S.W.2d 406, 1929 Ky. LEXIS 781 ( Ky. 1929 ).

A mother was wholly dependent on her deceased son even if she did the cooking, washing and ironing for the family and son spent a large portion of his earnings on himself, the test of total dependency being not how much of his wages he contributed to her support but whether she had to look to him entirely for her support. Sandlick Coal Co. v. Day, 233 Ky. 632 , 26 S.W.2d 521, 1930 Ky. LEXIS 618 ( Ky. 1930 ).

Finding that decedent employee’s mother occasionally earned small sums by taking in washing does not prove that she was not totally dependent on son’s earnings, where son turned over to her all his weekly earnings. Kentucky Valley Distilling Co. v. Quartermous, 275 Ky. 389 , 121 S.W.2d 917, 1938 Ky. LEXIS 434 ( Ky. 1938 ).

Where the testimony showed that decedent had assumed the full responsibility for his mother, although the support may have been lean, the court would not say that the mother was not totally dependent upon the decedent. Harlan v. Ford, 252 S.W.2d 684, 1952 Ky. LEXIS 1017 ( Ky. 1952 ).

40. — Partially Dependent.

The father and mother of deceased 19-year-old employee were entitled to compensation as partial dependents even though the father had a small farm of 30 acres and $70.00 in a bank account and a secondhand Ford automobile costing $149 given him by the son. Scuddy Coal Co. v. York, 233 Ky. 497 , 26 S.W.2d 34, 1930 Ky. LEXIS 598 ( Ky. 1930 ).

Father was not partial dependent of deceased employee who did not contribute any part of his earnings to father in year preceding fatal accident, where father and other members of deceased employee’s family resided with decedent’s brother-in-law who gave them partial support, notwithstanding deceased employee, in view of such support, released brother-in-law from debt of about $500 which was due employee for past services. Miller v. Elkhorn Coal Corp., 284 Ky. 737 , 145 S.W.2d 822, 1940 Ky. LEXIS 552 ( Ky. 1940 ).

41. — Foster.

The foster parents of a deceased employee who were dependent upon him and to whom he contributed 40% of his earnings were entitled to compensation even though not included in any of the clauses mentioned in this section, but “in all other cases” class; and the phrase “household of the employee” meant living in the same household with the employee and not restricted to that of which he is head. Maryland Casualty Co. v. Coleman, 220 Ky. 764 , 295 S.W. 1044, 1927 Ky. LEXIS 626 ( Ky. 1927 ).

42. Brothers and Sisters.

A sister is included in the class who may be declared partially or wholly dependent. Two sisters who lived with their father and deceased brother, both of whom contributed to their support, were entitled to compensation as partial dependents of deceased brother. Price v. Louisville Hydro-Electric Co., 230 Ky. 562 , 20 S.W.2d 448, 1929 Ky. LEXIS 130 ( Ky. 1929 ).

Where brother and sister claimants lived with deceased brother, fact that their aunt and another sister also contributed to their support did not reduce their status as total dependents, since contributions to common fund from such aunt and sister did not equal amount required for claimants’ support. James E. Pepper & Co. v. Travis, 260 Ky. 725 , 86 S.W.2d 683, 1935 Ky. LEXIS 547 ( Ky. 1935 ).

43. Grandchildren.
44. — Illegitimate.

Since dependency must exist at time of employee’s accident, illegitimate grandchild born after death of decedent was not dependent. Sunfire Coal Co. v. Day, 267 Ky. 716 , 103 S.W.2d 82, 1937 Ky. LEXIS 366 ( Ky. 1937 ).

45. Aunts and Uncles.

Aunt and sister of deceased employee were not total dependents of deceased, since both claimants earned substantial amounts which they used for their support. James E. Pepper & Co. v. Travis, 260 Ky. 725 , 86 S.W.2d 683, 1935 Ky. LEXIS 547 ( Ky. 1935 ).

46. Nephews and Nieces.

Evidence that claimant’s two adopted children lived with deceased and his brother and sister-in-law, deceased furnished food, utilities, and minimum clothing, while brother and sister-in-law paid rent, was sufficient to sustain compensation board finding that children were only 50% dependent upon deceased. Cornish's Guardian v. Lexington Utilities Co., 270 Ky. 62 , 109 S.W.2d 10, 1937 Ky. LEXIS 21 ( Ky. 1937 ).

Where statutory guardian of infant nieces claimed total compensation for death of infants’ uncle, there was no presumption of total dependence, claimant had burden of establishing such dependence, and board had duty to determine degree of dependence under all proven facts and circumstances. Cornish's Guardian v. Lexington Utilities Co., 270 Ky. 62 , 109 S.W.2d 10, 1937 Ky. LEXIS 21 ( Ky. 1937 ).

47. Cousins.

Where decedent lived with a cousin and her son and brother, contributed about $30.00 per month, did some work there, and received in return his food, lodging, and washing and mending, all through mutual accord, no dependency was established as it was not shown that decedent’s contributions exceeded in value what he received from claimant. Kentucky Coke Co. v. Baker, 242 Ky. 807 , 47 S.W.2d 721, 1932 Ky. LEXIS 364 ( Ky. 1932 ).

Cited:

Blue Bird Mining Co. v. Kelly, 237 S.W.2d 530, 1951 Ky. LEXIS 765 ( Ky. 1951 ); Columbus Mining Co. v. Pelfrey, 237 S.W.2d 847, 1951 Ky. LEXIS 781 ( Ky. 1951 ); Young v. Waters Constr. Co., 281 S.W.2d 888, 1955 Ky. LEXIS 204 ( Ky. 1955 ); Transport Motor Express, Inc. v. Finn, 568 S.W.2d 509, 1977 Ky. App. LEXIS 922 (Ky. Ct. App. 1977); Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 1990 Ky. LEXIS 24 ( Ky. 1990 ), rehearing denied, 1990 Ky. LEXIS 83 ( Ky. 1990 ); Birkenshaw v. Union Light, Heat & Power Co., 889 S.W.2d 804, 1994 Ky. LEXIS 143 ( Ky. 1994 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Basil, Workers’ Compensation, 69 Ky. L.J. 687 (1980-81).

Northern Kentucky Law Review.

Comments, Kentucky Workmen’s Compensation Benefits — Apportionment and Computation, 6 N. Ky. L. Rev. 91 (1979).

Treatises

Petrilli, Kentucky Family Law, Marriage in General, § 1.4e.

Petrilli, Kentucky Family Law, Support of the Family, § 16.8.

ALR

Posthumous children and children born after accident as dependents. 18 A.L.R.3d 900.

342.080. When compensation ceases. [Repealed.]

Compiler’s Notes.

This section (4894; amend. Acts 1948, ch. 64, § 7; 1964, ch. 192, § 6) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.750 .

342.085. Definition of certain dependents.

As used in this chapter:

  1. “Child” includes stepchildren, legally adopted children, posthumous children and recognized children born out of wedlock, but does not include married children unless actually dependent;
  2. “Brother” and “sister” includes stepbrothers, stepsisters and brothers and sisters of the half blood or by adoption, but excludes married brothers or sisters unless actually dependent;
  3. “Grandchild” includes children of adopted children or stepchildren, but excludes stepchildren of children or of adopted children and married children;
  4. “Parent” includes stepparents and parents by adoption; and
  5. “Adopted” and “adoption” include cases where the persons are legally adopted.

History. 4895: amend. Acts 1984, ch. 16, § 7, effective July 13, 1984.

NOTES TO DECISIONS

  1. Child.
  2. — Posthumous.
  3. — Of Bigamous Marriage.
  4. — Dependent and Living in Household.
  5. — Adopted.
  6. Illegitimate Grandchild.
  7. Foster Parents.
1. Child.
2. — Posthumous.

Posthumous child was entitled to compensation, notwithstanding apparent requirement of KRS 342.075 that child must have lived with and been supported by parent. Fuller v. Carrs Fork Coal Co., 280 Ky. 25 , 132 S.W.2d 540, 1939 Ky. LEXIS 68 ( Ky. 1939 ).

3. — Of Bigamous Marriage.

Child of bigamous marriage is entitled to compensation if deceased employee recognized his parental responsibility. Fuller v. Carrs Fork Coal Co., 280 Ky. 25 , 132 S.W.2d 540, 1939 Ky. LEXIS 68 ( Ky. 1939 ).

4. — Dependent and Living in Household.

Where infant child lived with and was totally dependent upon deceased at time of his death, such child was entitled to compensation, notwithstanding she had not been formally adopted by him and was a niece of woman with whom deceased illicitly cohabited. Jones v. Louisville Gas & Electric Co., 209 Ky. 642 , 273 S.W. 494, 1925 Ky. LEXIS 567 ( Ky. 1925 ).

5. — Adopted.

A child is considered the “child” of his adoptive father after adoption and not as the “child” of his natural father after adoption. Smith v. Dixie Fuel Co., 566 S.W.2d 156, 1977 Ky. App. LEXIS 912 (Ky. Ct. App. 1977).

6. Illegitimate Grandchild.

Since dependency must exist at time of employee’s accident, illegitimate grandchild born after death of decedent was not dependent. Sunfire Coal Co. v. Day, 267 Ky. 716 , 103 S.W.2d 82, 1937 Ky. LEXIS 366 ( Ky. 1937 ).

7. Foster Parents.

Although foster parents are not included in the classes specifically designated by this section as dependents, under facts showing they were actually dependents they were entitled to compensation. Maryland Casualty Co. v. Coleman, 220 Ky. 764 , 295 S.W. 1044, 1927 Ky. LEXIS 626 ( Ky. 1927 ).

Cited:

Simpson v. Simpson, 586 S.W.2d 33, 1979 Ky. LEXIS 281 ( Ky. 1979 ); Davis v. Johnson, 295 S.W.3d 841, 2009 Ky. App. LEXIS 30 (Ky. Ct. App. 2009).

Research References and Practice Aids

Northern Kentucky Law Review.

Comments, Kentucky Workmen’s Compensation Benefits — Apportionment and Computation, 6 N. Ky. L. Rev. 91 (1979).

Treatises

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, § 31.1.

ALR

Posthumous children and children born after accident as dependents. 18 A.L.R.3d 900.

342.090. Payment of death benefits in good faith — Release of payor from liability.

Payment of death benefits in good faith to a supposed dependent or to a dependent subsequent in right to another or other dependents shall protect and discharge the employer and insurer unless and until the lawful dependent or dependents prior in right have given the employer or insurer written notice of his or their claim. In case the employer or insurer is in doubt as to who are dependents or as to their respective rights, the administrative law judge shall, on application, decide and direct to whom payment shall be made, and payment made under such direction shall release the employer and insurer from all liability. If an appeal is taken from the order of the administrative law judge directing payment, persons receiving payment under such order shall furnish bond for the protection of adverse claimants pending the outcome of the proceedings.

History. 4896: amend. Acts 1987 (Ex. Sess.), ch. 1, § 8, effective January 4, 1988; 1996 (1st Ex. Sess.), ch. 1, § 55, effective December 12, 1996; 2000, ch. 514, § 5, effective July 14, 2000.

NOTES TO DECISIONS

  1. No Dependents.
  2. Payments to Bigamous Wife.
  3. Attorney’s Fee.
1. No Dependents.

A compensated administrator may recover accrued compensation when his decedent dies intestate leaving no dependents. Brewer v. Caudill, 314 S.W.2d 550, 1958 Ky. LEXIS 308 ( Ky. 1958 ).

2. Payments to Bigamous Wife.

Payments to bigamous wife were deductible from compensation where employer had no notice that employee left lawful wife and child and no claim was made by them for more than one year after death of employee. Johnson v. Hardy-Burlingham Mining Co., 205 Ky. 752 , 266 S.W. 635, 1924 Ky. LEXIS 227 ( Ky. 1924 ).

3. Attorney’s Fee.

Employer was entitled to credit on compensation award for lump-sum allowance to attorney of employee’s widow, even though, by reason of widow’s remarriage, her right to payments ceased and the attorney thus received a larger part of the amount paid than his contract called for. W. M. Ritter Lumber Co. v. Begley, 288 Ky. 481 , 156 S.W.2d 501, 1941 Ky. LEXIS 134 ( Ky. 1941 ).

Cited:

Russell Constr. Co. v. Workmen’s Compensation Board, 397 S.W.2d 357, 1965 Ky. LEXIS 81 ( Ky. 1965 ).

342.095. Compensation for total disability. [Repealed.]

Compiler’s Notes.

This section (4897: amend. Acts 1946, ch. 37, § 3; 1948, ch. 64, § 8; 1950, ch. 187, § 3; 1952, ch. 182, § 4; 1956, ch. 77, § 6; 1960, ch. 147, § 4; 1962, ch. 267, § 1; 1964, ch. 192, § 7) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.730 and 342.735 .

342.100. Compensation for temporary partial disability. [Repealed.]

Compiler’s Notes.

This section (4898: amend. Acts 1946, ch. 37, § 4; 1948, ch. 64, § 9; 1950, ch. 187, § 4; 1952, ch. 182, § 5; 1956, ch. 77, § 7; 1960, ch. 147, § 5; 1962, ch. 267, § 2; 1964, ch. 192, § 8) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973.

342.105. Compensation for enumerated permanent partial disabilities. [Repealed.]

Compiler’s Notes.

This section (4899: amend. Acts 1946, ch. 37, § 5; 1948, ch. 64, § 10; 1950, ch. 187, § 5; 1952, ch. 182, § 6; 1956, ch. 77, § 8; 1960, ch. 147, § 6; 1962, ch. 267, § 3; 1964, ch. 192, § 9; 1970, ch. 6, § 3) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.730 .

342.110. Other permanent partial disability; compensation. [Repealed.]

Compiler’s Notes.

This section (4899: amend. Acts 1946, ch. 37, § 6; 1948, ch. 64, § 11; 1950, ch. 187, § 6; 1952, ch. 182, § 7; 1956, ch. 77, § 9; 1960, ch. 147, § 7; 1962, ch. 267, § 4; 1964, ch. 192, § 10) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973.

342.111. Continuance of disability payments upon death of employe. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 94, §§ 2, 3; 1946, ch. 37, § 9; 1956, ch. 77, § 10; 1960, ch. 147, § 8; 1970, ch. 7, § 2) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.730 .

342.113. Refusal of proper employment forfeits compensation. [Repealed.]

Compiler’s Notes.

This section (Acts 1970, ch. 16, § 5) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.710(5).

342.115. Refusal of proper employment forfeits compensation. [Repealed.]

Compiler’s Notes.

This section (4900) was repealed by Acts 1970, ch. 16, § 7. For present law see KRS 342.710(5).

342.120. Division of Workers’ Compensation Funds — Fund’s liability for claims occurring after December 12, 1996 — Payment of settlements for income benefits — Transfer of responsibilities from division to Kentucky Employers’ Mutual Insurance Authority.

  1. There is created the Division of Workers’ Compensation Funds in the Department of Workers’ Claims which shall be responsible for the administration of the special fund and the coal workers’ pneumoconiosis fund and the maintenance of records regarding the payment of claims by these funds. The Division of Workers’ Compensation Funds shall have no responsibility for the coal workers’ pneumoconiosis fund once the assets and liabilities have been transferred to the Kentucky Employers’ Mutual Insurance Authority, which will administer the fund pursuant to KRS 342.1243 . The Division of Workers’ Compensation Funds shall be headed by a director appointed by the secretary of the Labor Cabinet, with the prior written approval of the Governor pursuant to KRS 12.050 . The director shall be responsible for overseeing the administration of the funds and the maintenance of records regarding the payment of claims by the funds.
  2. The special fund shall have no liability upon any claim in which the injury occurred, or for cumulative trauma, the disability became manifest, or, for occupational disease, if the date of injury or last exposure occurred, after December 12, 1996.
  3. Where the employer has settled its liability for income benefits and thereafter a determination has been made of the special fund’s liability, the special fund portion of the benefit rate shall be paid over the maximum period provided for by statute for that disability, with the period of payment beginning on the date settlement was approved by an administrative law judge. This provision is remedial and shall apply to all pending and future claims.

HISTORY: 4901: amend. Acts 1946, ch. 23, § 1; 1948, ch. 64, § 12; 1960, ch. 147, § 9; 1962, ch. 276, § 1; 1964, ch. 192, § 11; 1972, ch. 78, § 17; 1978, ch. 256, § 1, effective June 17, 1978; 1980, ch. 104, § 3, effective July 15, 1980; 1982, ch. 278, § 17, effective July 15, 1982; 1984, ch. 414, § 34, effective July 13, 1984; 1987 (Ex. Sess.), ch. 1, § 9, effective January 4, 1988; 1990, ch. 67, § 1, effective July 13, 1990; 1990, ch. 390, § 1, effective July 13, 1990; 1994, ch. 181, Part 9, § 31, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 3, effective December 12, 1996; 2000, ch. 514, § 6, effective July 14, 2000; 2002, ch. 246, § 1, effective July 15, 2002; 2010, ch. 24, § 1786, effective July 15, 2010; 2017 ch. 173, § 10, effective April 10, 2017; 2017 ch. 82, § 5, effective June 29, 2017.

Compiler’s Notes.

The cases annotated below were decided under prior provisions of this statute.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 82 and 173, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

  1. Purpose.
  2. Construction.
  3. Application.
  4. Preexisting Conditions.
  5. — Dormant Disease or Condition.
  6. — Compensable Injury.
  7. — Complete Recuperation.
  8. —Subsequent Injury.
  9. — Mental and Emotional.
  10. — Personality Disorder.
  11. — Noncompensable.
  12. — Partial Blindness.
  13. Medical Testimony.
  14. — Disability.
  15. — — Functional.
  16. — — Occupational.
  17. — Disease.
  18. — — Dormant.
  19. — Evidence.
  20. Worker's Compensation Fund [Formerly Special Fund].
  21. — Joinder as Party.
  22. — Reimbursement of Employer.
  23. — Party to Proceedings.
  24. — Liability.
  25. — Disability Pension Plan.
  26. — — Evidence.
  27. — Subrogation.
  28. — Apportionment.
  29. — — Procedure.
  30. Recovery from Third Party.
  31. Liability of Second Employer.
  32. Procedure.
  33. Subsequent Independent Injury.
  34. Payments Prior to Final Determination.
  35. Compensation.
  36. Gradual Injury.
  37. Life Expectancy Table.
  38. Appellate Review.
  39. Payments.
  40. Nonwork-Related and Work-Related Aggravation.
  41. Disability Benefits.
  42. — Pension Plan.
1. Purpose.

The purpose of this section is to protect employers from having to pay for injuries not sustained in their employ, or more than once for disabilities resulting from the same accident. Bennett v. White Coal Co., 288 Ky. 827 , 157 S.W.2d 73, 1941 Ky. LEXIS 161 ( Ky. 1941 ) (decided prior to amendment by Acts 1996 (Ex. Sess.) ch. 1, § 3).

The purpose of this section is to encourage re-employment of injured workers at adequate wages by relieving the employer of the requirement of paying disability compensation in addition to full wages. Kentucky Mountain Coal Co. v. Witt, 358 S.W.2d 517, 1962 Ky. LEXIS 187 ( Ky. 1962 ) (decided prior to amendment by Acts 1996 (Ex. Sess.) ch. 1, § 3).

The 1972 amendment shifted liability from the employer to the special fund for that portion of the worker’s disability ascribable to a preexisting nondisabling condition that was not a “disease.” Haycraft v. Corhart Refractories Co., 544 S.W.2d 222, 1976 Ky. LEXIS 19 ( Ky. 1976 ) (decided prior to amendment by Acts 1996 (Ex. Sess.) ch. 1, § 3).

The legislature intended to encourage the employment of persons having health problems which could affect the degree of disability in the event of subsequent injury. Yocom v. Jackson, 554 S.W.2d 891, 1977 Ky. App. LEXIS 781 (Ky. Ct. App. 1977) (decided prior to amendment by Acts 1996 (Ex. Sess.) ch. 1, § 3).

The purpose of this section is to prevent the employer from being held responsible for more of a compensation award than is attributable to a disability incurred in the course of an employee’s employment with him — a result viewed as particularly unjust to employers and which encourages discrimination against disabled workers in hiring policies. Transport Motor Express, Inc. v. Finn, 574 S.W.2d 277, 1978 Ky. LEXIS 419 ( Ky. 1978 ) (decided prior to amendment by Acts 1996 (Ex. Sess.) ch. 1, § 3).

The purpose of this section is to protect employers from having to pay for injuries not sustained in their employ, to prevent an employer from being held responsible for more of a compensation award than is attributable to a disability incurred in the course of an employee’s employment with him, and to encourage reemployment of injured workers by relieving the employer of the risk of paying compensation for disability brought about as a result of a previous condition. Stovall v. Dal-Camp, Inc., 669 S.W.2d 531, 1984 Ky. LEXIS 228 ( Ky. 1984 ).

This section creates the Special Fund for the purpose of relieving the employer of liability for the proportion of employee disability which is attributable to a pre-existing, dormant, non-disabling disease or condition; the employer, therefore, is liable only for the degree of disability resulting from the work-related injury or disease. A & K Coal Co. v. Blankenship, 708 S.W.2d 638, 1986 Ky. LEXIS 261 ( Ky. 1986 ).

The purpose for which the special fund was created is to prevent the employer from being held responsible for more of a compensation award than is attributable to a disability incurred in the course of an employee’s employment with him. Brown & Williamson Tobacco Corp. v. Harper, 717 S.W.2d 502, 1986 Ky. App. LEXIS 1178 (Ky. Ct. App. 1986).

While an employer should not be relieved of liability on an injury claim by the existence of an occupational disease claim, one of the underlying purposes of creating a subsequent injury fund was to encourage employers to hire already disabled workers. To that end, the employer has an interest in being held liable for no more of the disability than that received in his employ. Beale v. Shepherd, 809 S.W.2d 845, 1991 Ky. LEXIS 20 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 91 (Ky. July 3, 1991).

2. Construction.

It is doubtful that a nondisabling degenerative condition which is due to normal aging processes is the type of condition intended to be covered by this section. Brown v. Gregory, 398 S.W.2d 710, 1966 Ky. LEXIS 510 ( Ky. 1966 ).

The former language in subsection (2) of this section and in KRS 342.121 (1) (prior to 1996) was mandatory, and, as a matter of course, the Board would appoint a physician. Chestnut Flats Coal Co. v. Jones, 565 S.W.2d 650, 1978 Ky. App. LEXIS 515 (Ky. Ct. App. 1978) (decision prior to 1982 amendment).

Former subsection (8) of this section addresses a method of payment and is procedural and operates to effectuate a remedy; therefore its application, as amended on April 4, 1994, to disabled worker’s claim did not constitute an impairment of a vested right and did not come within the legal concept of a retrospective law nor the general rule against the retrospective operation of statutes of KRS 446.080(3). Miracle v. Riggs, 918 S.W.2d 745, 1996 Ky. App. LEXIS 44 (Ky. Ct. App. 1996).

Case law requiring that an employee's cumulative injury be apportioned to the employer based upon the percentage of disability attributable to work performed by the employee while in the employ of that employer did not apply to the instant case where that case law had been decided under a different version of Ky. Rev. Stat. Ann. ch. 342, and nothing in the version of chapter 342 in effect at the time of the claim so limited the employer's liability. Hale v. CDR Operations, Inc., 474 S.W.3d 129, 2015 Ky. LEXIS 1935 ( Ky. 2015 ).

3. Application.

When the Board from the testimony finds as fact that a preexisting, nondisabling condition was not a disease condition, no portion of this section is applicable. Young v. Scotia Coal Co., 464 S.W.2d 796, 1971 Ky. LEXIS 496 ( Ky. 1971 ).

Where the Compensation Board makes an open-end award, it does not prevent application of this section. Joseph E. Seagram & Son, Inc. v. Lyons, 473 S.W.2d 106, 1971 Ky. LEXIS 132 ( Ky. 1971 ).

Since the 1994 amendment to this section operated only to extend the Special Fund’s payment and did not affect the amount which the worker would receive, the amendment did not deprive the worker of a vested right and hence should be applied to any claim pending on April 4, 1994, the date it became effective. Duty v. Double Eagle Co., 939 S.W.2d 874, 1997 Ky. LEXIS 22 ( Ky. 1997 ).

The intent of the 1994 amendment to this section to the effect that where the employer has settled its liability for income benefits and then a determination has been made of the special fund’s liability, the special fund portion of the benefit rate should be paid over the maximum period provided by statute for that disability, unless otherwise agreed by all the parties was to address the Special Fund’s unfunded liability and to overrule Newberg v. Chumley, 824 S.W.2d 413, 1992 Ky. LEXIS 18 ( Ky. 1992 ) to the extent that Chumley had required the Special Fund to pay the entire award for its proportionate number of weeks; the 1996 amendment which expressly provides that the Special Fund is to begin payment upon approval of a settlement between the worker and employer and to pay its apportioned share of the award over the maximum statutory period for the disability, constitutes a clarification of that intent rather than a change in policy and since it expressly states that it is remedial and applies to all claims pending on its effective date, it applied to claim that arose in 1993. Duty v. Double Eagle Co., 939 S.W.2d 874, 1997 Ky. LEXIS 22 ( Ky. 1997 ).

The statute controls only the distribution of income benefits; it does not control the amount of benefits which the worker is entitled to receive. Coots v. Whittaker, 998 S.W.2d 491, 1999 Ky. LEXIS 100 ( Ky. 1999 ).

4. Preexisting Conditions.

Testimony of examining physician that he had examined claimant some 16 months prior to filing of claim and found a left knee injury of about two (2) weeks duration and that, upon re-examination three years later, he found the same condition precluded board from having to believe claimant sustained injury within one-year period before claim was filed. Louisa Coca-Cola Bottling Co. v. Sturgill, 467 S.W.2d 584, 1971 Ky. LEXIS 385 ( Ky. 1971 ).

Claimant’s argument that there was no occupational disability prior to the second injury because she had been able to hold a job as nurse’s aid for 19 months immediately preceding that injury was not valid because the mere fact that an employee is able to hold down a job is not conclusive that the employee has no occupational disability. Griffin v. Booth Memorial Hospital, 467 S.W.2d 789, 1971 Ky. LEXIS 410 ( Ky. 1971 ); Griffin v. Booth Memorial Hospital, 490 S.W.2d 736, 1973 Ky. LEXIS 638 ( Ky. 1973 ).

Where the claimant’s condition of osteoporosis had no effect upon the claimant according to the only medical evidence introduced concerning it, its arousal could not have been a factor in the resulting disability. Young v. South-East Coal Co., 468 S.W.2d 316, 1971 Ky. LEXIS 340 ( Ky. 1971 ).

The mere fact that a physician uses the word “disease” in characterizing the employee’s preexisting condition does not necessarily raise the preexisting condition to that category and the Board was not bound by such use of the word. Young v. Tackett, 468 S.W.2d 319, 1971 Ky. LEXIS 342 ( Ky. 1971 ).

Where an employee is left permanently disabled after a back injury that aroused into disabling reality a preexisting, dormant, nondisabling spondylolisthesis, the employer alone is liable without apportionment to the special fund under this section, since spondylolisthesis is not a disease condition within the meaning of this section because it occurs by reason of the aging process or natural wear and tear. Giles Industries, Inc. v. Neal, 471 S.W.2d 5, 1971 Ky. LEXIS 219 ( Ky. 1971 ) (decision prior to 1972 amendment).

Where a claimant suffered a back injury almost four (4) years before suffering a similar work-related injury, the compensation board’s own findings do not support its implicit conclusion that the later injury alone caused the claimant’s resulting disability so that this section must be applied. Joseph E. Seagram & Son, Inc. v. Lyons, 473 S.W.2d 106, 1971 Ky. LEXIS 132 ( Ky. 1971 ).

There could not be a preexisting “active nondisabling” disease condition not covered by this section since an “active nondisabling” disease condition is a contradiction in terms. Yocom v. Loy, 573 S.W.2d 645, 1978 Ky. LEXIS 413 ( Ky. 1978 ) (decision prior to 1972 amendment).

If the disability caused by the compensable injury or disease would have been no less in any event, the preexisting condition of the claimant is irrelevant and cannot constitute a preexisting disability within the meaning of the workers’ compensation law. Schneider v. Putnam, 579 S.W.2d 370, 1979 Ky. LEXIS 238 ( Ky. 1979 ).

In referring to previous disability and prior disabling disease or injury former subsections (3) and (4) of this section contemplated only such preexisting disabilities as were found to be contributing factors in the quantum or degree of occupational disability existing after the injury or disease-incident for which compensation was payable. Schneider v. Putnam, 579 S.W.2d 370, 1979 Ky. LEXIS 238 ( Ky. 1979 ).

Where it is not reasonably foreseeable that a preexisting disease or condition will of its own natural course result in permanent or lengthy indeterminate bodily functional impairment and if the evidence reasonably shows that the substantial cause of the occupational disability or death arose out of the working conditions, then a finding that all liability rests on the employer is permissible. Dealers Transport Co. v. Thompson, 593 S.W.2d 84, 1979 Ky. App. LEXIS 500 (Ky. Ct. App. 1979).

When a preexisting disease or condition is the result of the work done by the employee for an employer, the condition is compensable by the employer only; therefore, the special fund was not liable where the claimant’s injury was partly caused by his condition resulting from his previous work-related hernias which occurred while he was employed by the same employer. Rapid Industries, Inc. v. Clark, 715 S.W.2d 902, 1986 Ky. App. LEXIS 1221 (Ky. Ct. App. 1986).

A preexisting condition, or predisposition to injury, which is work related, was exempted from former subsection (4) of this section, and was compensable by the employer; this exemption applies not only to gradual-type injuries, but also to injuries from a series of traumas. Beale v. W.W. Corp., 776 S.W.2d 841, 1989 Ky. App. LEXIS 105 (Ky. Ct. App. 1989).

Administrative Law Judge was not free to apportion award between an employer and the Special Fund since liability for the entire award rested with the Special Fund. The statute protects employers from being held responsible for any portion of a worker’s disability that was caused by non-work-related factors. Therefore, if the medical evidence shows that but for the preexisting condition the injury would have resulted in no disability, the Special Fund is responsible for the entire award. This is not because the preexisting condition caused the entire disability, but because the injury alone would not have caused any disability. Accuride Corp. v. Donahoo, 865 S.W.2d 652, 1993 Ky. LEXIS 136 ( Ky. 1993 ).

5. — Dormant Disease or Condition.

The term “disease condition,” as formerly used in this section, was intended to have the meaning given it in common usage which excluded congenital abnormalities and perhaps some other conditions of departure from the norm. Appalachian Regional Hospitals, Inc. v. Brown, 463 S.W.2d 323, 1971 Ky. LEXIS 583 ( Ky. 1971 ) (decision prior to 1972 amendment).

Although the claimant’s obesity compounded her injury and decreased her ability to recover, obesity could not be said to be a “dormant, nondisabling disease aroused or brought into disabling reality” so as to require apportionment between the employer and the special fund. Kentucky Convalescent Home v. Henry, 463 S.W.2d 328, 1971 Ky. LEXIS 585 ( Ky. 1971 ).

Spondylolisthesis, a usually congenital displacement of one vertebra over another, is not a disease condition within the meaning of this section. Young v. Monroe, 466 S.W.2d 452, 1971 Ky. LEXIS 413 ( Ky. 1971 ). See Young v. South-East Coal Co., 468 S.W.2d 316, 1971 Ky. LEXIS 340 ( Ky. 1971 ); Boone Box Co. v. Phillips, 474 S.W.2d 86, 1971 Ky. LEXIS 88 (Ky. 1971).

A preexisting degenerative disc in itself is not a disease and the fact that a physician characterized it as a disease does not raise the condition to the required category. Young v. South-East Coal Co., 468 S.W.2d 316, 1971 Ky. LEXIS 340 ( Ky. 1971 ).

Hypertrophic or osteoarthritic lipping is a degenerative condition stemming from the aging process and is not a disease for which the special fund is liable. Young v. South-East Coal Co., 468 S.W.2d 316, 1971 Ky. LEXIS 340 ( Ky. 1971 ).

A dormant, nondisabling, degenerative disc condition is not a dormant, preexisting, nondisabling disease condition within the meaning of this section so that the special fund is not liable to an employee who is totally disabled by such a disc condition. Young v. Charles, 471 S.W.2d 711, 1971 Ky. LEXIS 250 ( Ky. 1971 ).

Since degenerative arthritis is not a disease within the category of a dormant, nondisabling “disease” referred to by this section, it was error on the part of the circuit court to impose liability on the special fund instead of just the employer after the employee suffered a back injury and became 50% permanently partially disabled. Young v. Bartley, 472 S.W.2d 262, 1971 Ky. LEXIS 187 ( Ky. 1971 ).

Congenital deformities, in and of themselves, are not disease conditions which when aggravated would constitute basis for an apportionment under this section. Young v. Wright, 474 S.W.2d 76, 1971 Ky. LEXIS 85 ( Ky. 1971 ).

Where it was readily apparent from the context of the award that the board avoided the question of whether the preexisting condition was a disease and where there was no substantial evidence in the record from which it would have been justified in finding that it was a disease, the judgment of the board was reversed. Yocom v. Fleming, 492 S.W.2d 194, 1973 Ky. LEXIS 506 ( Ky. 1973 ).

A low-threshold emotional breaking point is not a disease condition within the meaning of this section. Yocom v. Tri-County Sanitation Service, Inc., 522 S.W.2d 850, 1975 Ky. LEXIS 141 ( Ky. 1975 ).

Prior to the Acts 1996 (Ex. Sess.), ch. 1, § 3 amendment of this section, the provision providing that the special fund could be joined in a proceeding for benefits if the employee was found to have a dormant non-disabling disease or condition which was aroused or brought into disabling reality by reason of a subsequent compensable injury or an occupational disease applied only to a preexisting condition that was not attributable in any degree to the work; a dormant preexisting condition of predisposition to injury, which was work-related, would increase the employer’s liability according to how much the work has contributed to it. Haycraft v. Corhart Refractories Co., 544 S.W.2d 222, 1976 Ky. LEXIS 19 ( Ky. 1976 ).

A “dormant nondisabling condition” for which the special fund must share liability is a departure from the normal state of health which is reasonably foreseeable to become disabling to some degree as a result of the ordinary stresses of everyday life over the employee’s expected work life. Yocom v. Jackson, 554 S.W.2d 891, 1977 Ky. App. LEXIS 781 (Ky. Ct. App. 1977).

A person who has a disease condition known to him, and who is being treated medically for that condition, does not have a dormant, nondisabling disease condition. Armco Steel Corp. v. Lyons, 561 S.W.2d 676, 1978 Ky. App. LEXIS 471 (Ky. Ct. App. 1978).

Whether a preexisting disease condition was dormant does not turn on the employee’s knowledge of the condition or whether it was being treated medically prior to the subsequent injury; a preexisting disease condition was dormant if it was nondisabling prior to the subsequent injury. Yocom v. Loy, 573 S.W.2d 645, 1978 Ky. LEXIS 413 ( Ky. 1978 ).

“Dormant” means nondisabling and “active” means disabling with reference to claimant’s ability to work prior to the subsequent injury. Yocom v. Devine, 577 S.W.2d 41, 1979 Ky. App. LEXIS 373 , 1979 Ky. App. LEXIS 543 (Ky. Ct. App. 1979).

The legislature did not intend a cold, or other viral infection of a similar nature, to be a dormant nondisabling disease within the meaning of the statute because the potential for occupational disability is not intrinsic to the condition to a reasonably foreseeable degree. Dealers Transport Co. v. Thompson, 593 S.W.2d 84, 1979 Ky. App. LEXIS 500 (Ky. Ct. App. 1979).

When work-connected exertion or stress arouses a preexisting nondisabling arteriosclerotic condition and causes a heart attack, the disability arising therefrom is compensable. Stovall v. Dal-Camp, Inc., 669 S.W.2d 531, 1984 Ky. LEXIS 228 ( Ky. 1984 ).

Testimony of claimant’s doctors that his myeloma, a form of cancer, was made discoverable or clinically apparent as a result of a work-related injury constituted insufficient evidence to support a finding that his disability was brought into being as an arousal of a dormant, non-disabling disease. Wells v. Davidson, 689 S.W.2d 610, 1985 Ky. App. LEXIS 550 (Ky. Ct. App. 1985).

Where physician testified that although x-ray findings would be the same if claimant was a pencil pushing accountant, his condition would not be symptomatic with as great a frequency had he performed office work as opposed to his work as a pressman, the injuries and the nature of claimant’s work aroused symptoms of the underlying condition and the Workers’ Compensation Board correctly ruled that the employer was responsible for 25% of the award and the Special Fund 75%, based on the arousal of a dormant, nondisabling disease or condition into a disabling reality. Wells v. Bailey, 698 S.W.2d 841 (Ky. Ct. App. 1985).

The holding of Stovall v. Dal-Camp, Inc., 669 S.W.2d 531, 1984 Ky. LEXIS 228 (1984), that the employer shall be liable only for the degree of disability which would have resulted from the latter injury or occupational disease had there been no preexisting disability or dormant, but aroused disease or condition, is limited to heart attack action. Island Creek Coal Co. v. Buckman, 714 S.W.2d 503, 1985 Ky. App. LEXIS 715 (Ky. Ct. App. 1986), overruled, Accuride Corp. v. Donahoo, 865 S.W.2d 652, 1993 Ky. LEXIS 136 ( Ky. 1993 ).

For a predisposition to a particular type of injury to constitute a dormant, nondisabling condition which was aroused into disabling reality by work, the dormant, nondisabling condition must constitute a departure from the normal state of health. Because, as used by the medical profession, “predisposition” would encompass a potential created by virtually any human characteristic, regardless of whether or not that characteristic was a departure from the normal state of health, a predisposition, does not in and of itself, constitutes a dormant, nondisabling condition for the purposes of this section. Where there is evidence of such a predisposition, it is more appropriate to consider the underlying medical condition which caused the predisposition to determine whether or not that condition was a departure from the normal state of health, and whether it was aroused into disabling reality by the work-related injury. Newberg v. Armour Food Co., 834 S.W.2d 172, 1992 Ky. LEXIS 100 ( Ky. 1992 ).

Claimant suffered from carpal tunnel syndrome (CTS), and although claimant’s carpal tunnels were narrow, there was no medical evidence that it was outside the normal range. The evidence was that unless claimant had engaged in activities requiring the repetition of rapid, alternating, wrist motions or rapid, extreme flexion and extension, claimant probably would not have experienced the problems he did. Medical evidence indicated that it was the extreme frequency of the particular motions required by claimant’s work that was the source of the problems and that the occasional use of such motions would likely have caused no problem thus while claimant had a predisposition to CTS, such a predisposition did not constitute a dormant, nondisabling condition for purposes of this section. Newberg v. Armour Food Co., 834 S.W.2d 172, 1992 Ky. LEXIS 100 ( Ky. 1992 ).

Although claimant proved to the satisfaction of the administrative law judge and the Workers’ Compensation Board a predisposition to carpal tunnel syndrome, such predisposition did not constitute a dormant, nondisabling condition for the purposes of former subsection (2)(b) of this section simply because there was no evidence that this predisposition was a departure from the normal state of health. Newberg v. Sleets, 899 S.W.2d 495, 1995 Ky. App. LEXIS 85 (Ky. Ct. App. 1995).

The loosening effect of pregnancy on a woman’s back did not constitute a dormant non disabling disease or condition, and as such, work related back injury suffered by pregnant claimant was not properly apportionable between the special fund and the woman’s employer. Windchy v. Wray, 919 S.W.2d 534, 1996 Ky. App. LEXIS 60 (Ky. Ct. App. 1996).

When a work-related injury arouses a previously dormant, nondisabling disease or condition into disabling reality to the extent that the worker’s subsequent disability is greater than it otherwise would have been, the employer is liable for compensation for the disability which would have resulted from the injury had there been no such condition and the special fund is liable for the rest. Whittaker v. Troutman, 7 S.W.3d 363, 1999 Ky. LEXIS 126 ( Ky. 1999 ).

6. — Compensable Injury.

Where it was found that ten percent of injured employee’s total disability was due to previous injury, board correctly awarded him total compensation less amount which had been paid to him for such previous injury. Ajax Coal Co. v. Collins, 269 Ky. 222 , 106 S.W.2d 617, 1937 Ky. LEXIS 567 ( Ky. 1937 ).

Board found that claimant had silicosis in a totally disabling stage before he sustained back injury; therefore, his award was not to be reduced by percentage of disability attributable to back injury for which he made no claim. Twin Peak Coal Co. v. Woolum, 467 S.W.2d 134, 1971 Ky. LEXIS 356 ( Ky. 1971 ).

The employee’s amended claim alleging a prior injury was sufficient to require the board to give this matter consideration and to find and determine whether there had been a second injury and, if so, the percentage of disability resulting from this episode. Harris Bros. Constr. Co. v. Crider, 497 S.W.2d 731, 1973 Ky. LEXIS 372 ( Ky. 1973 ).

Where the evidence showed that claimant had sustained an injury at age three resulting in blindness in one eye and 20/400 vision in the other, that he suffered a back injury while performing manual labor as a receiving clerk for food products at his place of employ, that he had a preexisting but previously nondisabling degenerative condition of the spine, and that as a combined result of the back injury and spinal condition it was necessary for him to undergo surgery to remove an intervertebral disk, with the result that claimant was totally and permanently disabled, the board did not err in making an award of permanent total disability apportioned equally between the employer and special fund notwithstanding the previous disability from his eye injuries, since the back condition and injury would have rendered him totally disabled even if he had had perfect vision. Schneider v. Putnam, 579 S.W.2d 370, 1979 Ky. LEXIS 238 ( Ky. 1979 ).

The method by which to honor the mandate of former subsection (4) of this section and, at the same time, to give the appropriate application of the minimum benefit limitation as set forth in Apache v. Fuller, 541 S.W.2d 933, 1976 Ky. LEXIS 28 (1976), is to begin by raising a claimant’s award to the Apache minimum, and then calculating the appropriate proportionate reduction. Yocom v. West, 587 S.W.2d 608, 1979 Ky. App. LEXIS 472 (Ky. Ct. App. 1979).

The disability resulting from a heart attack induced from the arousal of a nondisabling condition by work-related stress or exertion is compensable; unless it can be shown that work-connected exertion or stress causes some identifiable injury to the body which then arouses a preexisting nondisabling condition into disabling reality by causing a heart attack, it must necessarily follow that work-connected stress or strain, in itself, constitutes a subsequent injury. Stovall v. Dal-Camp, Inc., 669 S.W.2d 531, 1984 Ky. LEXIS 228 ( Ky. 1984 ).

When a pre-existing condition for which the Special Fund is not liable under this section becomes an active disability through the agency of a work-connected injury, the employer alone, who takes the employee claimant as it finds him, is liable. Windchy v. Wray, 919 S.W.2d 534, 1996 Ky. App. LEXIS 60 (Ky. Ct. App. 1996).

7. — Complete Recuperation.

Where proof indicated that the claimant had fully recovered from a prior injury at the time of the injury complained of, the Workers’ Compensation Board properly refused to consider the first injury in making its award. Mary Helen Coal Corp. v. Miller, 302 Ky. 99 , 194 S.W.2d 69, 1946 Ky. LEXIS 611 ( Ky. 1946 ).

8. —Subsequent Injury.

This section presupposes the ability of the previously injured employee to work and earn wages. If employed at time of subsequent injury, he cannot have been totally and permanently disabled by his previous injuries, KRS 342.095 (repealed) to the contrary notwithstanding. Bennett v. White Coal Co., 288 Ky. 827 , 157 S.W.2d 73, 1941 Ky. LEXIS 161 ( Ky. 1941 ).

Where evidence showed employee’s previous injuries to both hands and body were of such nature as to greatly handicap him and his present injury, resulting in loss of his leg, more seriously handicapped him, each injury was necessarily a contributing factor to his present condition and, taken together, rendered him permanently disabled. Bell Coal Co. v. Osborne, 303 Ky. 469 , 198 S.W.2d 51, 1946 Ky. LEXIS 878 ( Ky. 1946 ).

This section did not apply to employee who had been previously compensated for loss of left eye resulting in 25% disability to the body as a whole and who subsequently suffered injury to his legs which in itself caused 100% disability to the body as a whole, and the prior award would not be deducted from the award for the latest injury. International Harvester Co. v. Poff, 331 S.W.2d 712, 1959 Ky. LEXIS 5 ( Ky. 1959 ).

A disability traceable to a preexisting, dormant, nondisabling disease is compensable even though the disease was aroused into disabling reality by another compensable injury. Fraley v. Rusty Coal Co., 399 S.W.2d 479, 1966 Ky. LEXIS 466 ( Ky. 1966 ).

Where the claimant had been entitled to compensation for a previous injury for which he abandoned his claim, on a subsequent injury claim he was precluded from recovering that portion of the award for injury due to the residual disability from the first injury suffered. Young v. J. S. Greer Meat Co., 438 S.W.2d 331, 1969 Ky. LEXIS 392 ( Ky. 1969 ).

Where the board decided that part of the disability was due to spondylolisthesis which was brought into disabling reality by the subsequent injury and where the spondylolisthesis was not disabling by itself and not a disease, there could be no apportionment between the special fund and the employer. Young v. Combs, 487 S.W.2d 906, 1972 Ky. LEXIS 80 ( Ky. 1972 ).

No matter how much the strain or exertion at work may have contributed to cause a heart attack, where the work-connected strain or exertion in itself would not have caused any disability whatsoever if it had not been for the arousal of a nondisabling condition or disease, it is improper to apportion any of the liability for compensation upon the employer. Stovall v. Dal-Camp, Inc., 669 S.W.2d 531, 1984 Ky. LEXIS 228 ( Ky. 1984 ).

A finding of preexisting functional impairment, in cases where the Workers’ Compensation Board determines that a second injury alone would not have resulted in 100% occupational disability, requires that the Board assign “some percentage” of occupational disability to the prior impairment. Collins v. Cumberland Gap Provision Co., 754 S.W.2d 864, 1988 Ky. App. LEXIS 89 (Ky. Ct. App. 1988).

The Workers’ Compensation Board did not err by awarding benefits for a 100% occupational disability for the duration of the disability, instead of limiting the duration of the award to 425 weeks as would be the case for an 80% permanent partial disability, where the 100% disability occurred as a result of injury subsequent to a previous 20% disability. Collins v. Cumberland Gap Provision Co., 754 S.W.2d 864, 1988 Ky. App. LEXIS 89 (Ky. Ct. App. 1988).

Post-1996 versions of KRS 342.730 (1)(b)-(e) and KRS 342.120 do not require “compensation” for nonwork-related disability to be excluded from an award; they prohibit “impairment” from a nonwork-related disability from being considered when selecting the permanent impairment rating caused by an injury, when calculating the disability rating and permanent partial disability benefit, and when determining the duration of the benefit. Therefore, permanent partial disability benefit was improperly calculated in a workers’ compensation case where a benefits claimant had a prior lumbar surgery before a work-related injury necessitated a second lumbar surgery because KRS 342.730 prohibited impairment from nonwork-related disabilities to be considered when determining not only the extent of a worker’s disability, but also whether the benefits would have been extended. Tudor v. Indus. Mold & Mach. Co., 375 S.W.3d 63, 2012 Ky. LEXIS 120 ( Ky. 2012 ).

9. — Mental and Emotional.

Employer is not relieved from consequences of employee’s dormant disabling infirmity unless classified as “disease condition,” and low-threshold emotional breaking point, as such, could not be so classified. Holland v. Childers Coal Co., 384 S.W.2d 293, 1964 Ky. LEXIS 80 ( Ky. 1964 ).

Basic personality propensities are not regarded as dormant nondisabling disease conditions within the purview of this section. Cabe v. Olin Mathieson Chemical Corp., 412 S.W.2d 250, 1967 Ky. LEXIS 418 ( Ky. 1967 ).

A low-threshold emotional breaking point, as such, is not a “disease condition” which would require apportionment of the award. Pikeville v. Maynard, 428 S.W.2d 202, 1968 Ky. LEXIS 708 ( Ky. 1968 ).

An employee’s preexisting psychoneurosis is not a “disease condition” which would require apportionment of the award. Pikeville v. Maynard, 428 S.W.2d 202, 1968 Ky. LEXIS 708 ( Ky. 1968 ).

Where the medical evidence established that the claimant had a dormant, nondisabling emotional or mental condition which was brought into reality by his physical injury, the determination of whether the preexisting psychiatric situation was a disease condition for purposes of apportionment to the special fund was primarily a medical question. Young v. Bear Branch Coal Co., 434 S.W.2d 656, 1968 Ky. LEXIS 246 ( Ky. 1968 ).

Where an employee was totally and permanently disabled by an accident but after a certain date the physical disability ceased and the continuing disability was due to a preexisting mental condition, the employer was liable for the compensation during the physical disability and the special fund became liable when the physical disability ceased. Young v. Bear Branch Coal Co., 465 S.W.2d 41, 1971 Ky. LEXIS 423 ( Ky. 1971 ).

Where the subsequent traumatic injury was found sufficient to cause the claimant’s total disability and caused him to leave the labor market, and the presence of silicosis, an earlier condition, was also found to be sufficient in itself to cause total disability, considering the entire statutory scheme the liability for payment of award rested with the employer under the situation. Beth-Elkhorn Corp. v. Young, 474 S.W.2d 64, 1971 Ky. LEXIS 80 ( Ky. 1971 ).

Labeling of certain stress factors that existed in employee’s life, as cited by psychiatrists to explain her inability to function after back injury, which factors were not disabling in and of themselves, as preexisting conditions that would trigger liability of the special fund held improper. Stovall v. Swanson, 681 S.W.2d 438, 1984 Ky. App. LEXIS 608 (Ky. Ct. App. 1984).

Where the Board’s reference to a psychological element was only a recognition that physical injury is frequently accompanied by psychological impairment and that some persons receiving the same injury, because of their psychological makeup, are more impaired than others, the record did not compel an apportionment upon the Special Fund. Wells v. Phelps Dodge Magnet Wire Co., 701 S.W.2d 411, 1985 Ky. App. LEXIS 672 (Ky. Ct. App. 1985).

A poor psychological makeup does not necessarily constitute a dormant condition subject to arousal within the meaning of former subdivision (2)(b) of this section. Wells v. Phelps Dodge Magnet Wire Co., 701 S.W.2d 411, 1985 Ky. App. LEXIS 672 (Ky. Ct. App. 1985).

10. — Personality Disorder.

Where evidence showed that claimant’s leg injury would have resulted in no disability absent his preexisting personality disorder, liability for the entire disability award should be apportioned to the Special Fund. Whittaker v. Huff, 962 S.W.2d 878, 1998 Ky. LEXIS 16 ( Ky. 1998 ).

11. — Noncompensable.

When previous injuries sustained in noncompensable accidents, though presumptively causing total permanent injuries under former KRS 342.095 (repealed), did not in fact totally and permanently disable the employee, he was entitled to compensation under this section for a subsequent injury, his compensation to be such as his resulting condition entitled him to receive less what he would have received had he been compensated for the actual, as distinguished from the presumed, degree of disability occasioned by his previous dismemberments. Bennett v. White Coal Co., 288 Ky. 827 , 157 S.W.2d 73, 1941 Ky. LEXIS 161 ( Ky. 1941 ).

The proper approach is for the board to determine the percentage of occupational disability actually existing by reason of the functional impairment immediately prior to the occurrence of the work-connected injury and independently of it, and the percentage thus determined then becomes that portion of the ultimate occupational disability which is noncompensable. Young v. Campbell, 459 S.W.2d 781, 1970 Ky. LEXIS 157 ( Ky. 1970 ).

The percentage of occupational disability which existed immediately prior to the subsequent injury is noncompensable and must be excluded from any award. Young v. Fulkerson, 463 S.W.2d 118, 1971 Ky. LEXIS 573 ( Ky. 1971 ).

Where various physicians testified that the claimant’s preexisting condition consisted of a degenerative disc, spondylolisthesis, or hypertrophic or degenerative osteoarthritic lipping, the board’s finding that 90% of the disability was due to the traumatic arousal of a dormant, preexisting, non-disabling disease was clearly erroneous. Young v. South-East Coal Co., 468 S.W.2d 316, 1971 Ky. LEXIS 340 ( Ky. 1971 ).

Where the independent doctor’s opinion was that claimant had no active disability prior to the claimed accident, his opinion being based on “medical history related to him by the plaintiff,” and that the plaintiff had been doing heavy manual labor without difficulty prior to his injury, but evidence indicated that the claimant had worn a back brace and an elastic stocking on his leg prior to the accident and complained of pain in the lower back, the board erred in reaching conclusion that claimant did not have a preexisting occupational disability. Curtright Funeral Home v. Carr, 479 S.W.2d 609, 1972 Ky. LEXIS 304 ( Ky. 1972 ).

Where claimant had some preexisting back disability attributable to work-related and other causes and suffered an onset of severe pain after sitting in a chair most of the day at the bedside of his sick mother on April 11, 1974, the extent to which the claimant was actively disabled prior to that date is noncompensable but he is entitled to compensation for the remainder of his disability attributable to the present condition of his back. Haycraft v. Corhart Refractories Co., 544 S.W.2d 222, 1976 Ky. LEXIS 19 ( Ky. 1976 ).

Where the board found that an injury to a claimant’s back while working for one employer merely aggravated a previous injury suffered while working for a former employer, there was an implicit finding that the second injury did not result in any liability for the second employer. Calloway County Fiscal Court v. Winchester, 557 S.W.2d 216, 1977 Ky. App. LEXIS 829 (Ky. Ct. App. 1977).

Even though the claimant had a noncompensable occupational disability which existed prior to the injury, this prior disability was not excluded when determining whether there was “total disability” for the purposes of subdivision (1)(a) of KRS 342.730 , but was later excluded in the apportionment process. Teledyne-Wirz v. Willhite, 710 S.W.2d 858, 1986 Ky. App. LEXIS 1039 (Ky. Ct. App. 1986).

12. — Partial Blindness.

Where one-eyed employee suffered traumatic loss of remaining eye, case of total disability existed and employee was granted total compensation less amount which would have been allowed for loss of first eye had such loss also been traumatic. Combs v. Hazard Blue Grass Coal Corp., 207 Ky. 242 , 268 S.W. 1070, 1925 Ky. LEXIS 65 ( Ky. 1925 ).

13. Medical Testimony.

Absent timely exceptions, the report of a physician appointed under the law is conclusive as to medical questions. Whitis v. Southern Belle Dairy, Inc., 434 S.W.2d 645, 1968 Ky. LEXIS 241 ( Ky. 1968 ).

Where the claimant timely filed specific objections to the report of the examining doctor, the board could reject the conclusiveness of the report and consider it as advisory and give it such weight as, in the exercise of a reasonable discretion, the board thought it deserved. Johnson Drilling & Trucking Co. v. Johnson, 452 S.W.2d 389, 1970 Ky. LEXIS 353 ( Ky. 1970 ).

Where the evidence showed the Board gave unusual weight to the nonconclusive, ambiguous medical report of the appointed physician, the board acted unreasonably in failing to give the claimant an opportunity to take the deposition of the physician so as to establish with some degree of certainty the medical reasons upon which the physician based his opinions and conclusions. Johnson Drilling & Trucking Co. v. Johnson, 452 S.W.2d 389, 1970 Ky. LEXIS 353 ( Ky. 1970 ).

Medical testimony that the injury could not alone have produced a herniated intervertebral disc and that the claimant must have had an undetected weakness or attenuation of his intervertebral disc anteceding that injury, although it was evidence of substance having fitness to induce conviction, was not the only evidence of that quality in presence of contrary evidence. Republic Steel Corp. v. Justice, 464 S.W.2d 267, 1971 Ky. LEXIS 486 ( Ky. 1971 ).

Board’s finding of 50 percent permanent partial disability, 30 percent attributable to prior condition, 10 percent attributable to last injury, and 10 percent attributable to arousal of a preexisting, dormant disease was supported by the evidence, which was contradictory medical testimony ranging from one extreme to the other. Hunter v. Great Lakes Constr. Co., 467 S.W.2d 763, 1971 Ky. LEXIS 399 ( Ky. 1971 ).

Where the appointed physician’s report was responsive to all the questions propounded and did not indicate any further medical investigation and no objections to the report were filed, the claimant could not be heard to protest that the physician was a specialist unqualified to assess his condition. Justice v. Walnut Hall Farm, 475 S.W.2d 905, 1971 Ky. LEXIS 78 ( Ky. 1971 ) (decision prior to 1970 amendment).

The circuit court erred in reversing the board’s finding that the claimant had not sustained any permanent disability, since it was not clearly unreasonable for the board to agree with one of the examining physicians that the claimant’s injury had not resulted in any permanent disability. Codell Constr. Co. v. Dixon, 478 S.W.2d 703, 1972 Ky. LEXIS 334 ( Ky. 1972 ).

14. — Disability.
15. — — Functional.

Functional disability is a medical question but occupational disability is not. Whitis v. Southern Belle Dairy, Inc., 434 S.W.2d 645, 1968 Ky. LEXIS 241 ( Ky. 1968 ).

When an employee suffers a functional impairment, there is a presumption of occupational disability in the same amount even though he returns to his job and performs his duties without difficulty. Young v. J. S. Greer Meat Co., 438 S.W.2d 331, 1969 Ky. LEXIS 392 ( Ky. 1969 ).

A preexisting functional disability will be presumed to have constituted an occupational disability of the same percentage. Young v. Ashland Oil & Refining Co., 442 S.W.2d 286, 1969 Ky. LEXIS 254 ( Ky. 1969 ).

Where the Board accepted the independent doctor’s finding of a preexisting 15% functional disability, it was required to treat 15% of the subsequent total disability as being noncompensable. Young v. Ashland Oil & Refining Co., 442 S.W.2d 286, 1969 Ky. LEXIS 254 ( Ky. 1969 ).

Where the medical experts all found a functional impairment from the prior injury, the board was required to find some degree of occupational disability attributable to that injury and the failure to do so was clearly and flagrantly erroneous. Griffin v. Booth Memorial Hospital, 490 S.W.2d 736, 1973 Ky. LEXIS 638 ( Ky. 1973 ).

16. — — Occupational.

If the appointed physician states that the claimant cannot perform certain kinds of physical functions, such opinion is an opinion on a medical question, but if the kinds of physical functions which the physician says the claimant cannot perform are such as are essential in the performance of the only occupation the claimant is qualified by training and experience to perform, the Workers’ Compensation Board is required, as a matter of logical deduction, to find that the claimant’s occupational disability is total. Whitis v. Southern Belle Dairy, Inc., 434 S.W.2d 645, 1968 Ky. LEXIS 241 ( Ky. 1968 ).

Where the physician limited his opinion to a statement of a percentage of disability of the body, the Workers’ Compensation Board was not bound in its determination of the extent of the claimant’s occupational disability by the report of the appointed physician. Whitis v. Southern Belle Dairy, Inc., 434 S.W.2d 645, 1968 Ky. LEXIS 241 ( Ky. 1968 ).

Where the physician’s report did not express an opinion as to occupational disability, testimony of the claimant himself that he could not perform the kinds of tasks required in his job and the testimony of another physician that the claimant could not do heavy work was relevant evidence which could be considered in making the determination of occupational disability. Whitis v. Southern Belle Dairy, Inc., 434 S.W.2d 645, 1968 Ky. LEXIS 241 ( Ky. 1968 ).

17. — Disease.

Where the report of the independent doctor found specifically that the claimant did not have a preexisting nondisabling disease, this was acceptable evidence of probative value and, regardless of other medical testimony in the record to the contrary, the board could properly rest a finding of fact upon it. Young v. Ashland Oil & Refining Co., 442 S.W.2d 286, 1969 Ky. LEXIS 254 ( Ky. 1969 ).

Where inquiry was made of the appointed doctor as to whether the disease the claimant had was such that the population generally was exposed to it, notwithstanding occupation, and he answered that it was, the board could consider the statement as significant. Young v. Dale, 446 S.W.2d 288, 1969 Ky. LEXIS 116 ( Ky. 1969 ).

Where the issue of the presence of “disease,” for the arousal of which the special fund is liable, was removed from consideration because the board-appointed physician’s report categorically found disease present, and no objections even remotely questioning that finding were filed, the board was not authorized to hold that a disease condition did not exist. Young v. Export Coal Co., 463 S.W.2d 116, 1971 Ky. LEXIS 572 ( Ky. 1971 ).

Ordinarily the testimony of medical experts as to whether a particular condition is or is not a “disease condition” would be acceptable as determinative, because it would be assumable that the expert is speaking in terms of common usage, but if it appears that the expert, in classifying a particular condition as a “disease condition,” is employing a purely technical meaning not consistent with common usage, his classification will not be acceptable. Appalachian Regional Hospitals, Inc. v. Brown, 463 S.W.2d 323, 1971 Ky. LEXIS 583 ( Ky. 1971 ).

Where by both medical and legal knowledge of common usage the condition of having spondylolisthesis is not a “disease condition,” there was no basis for apportionment. Appalachian Regional Hospitals, Inc. v. Brown, 463 S.W.2d 323, 1971 Ky. LEXIS 583 ( Ky. 1971 ).

Where the medical evidence established that the preexisting condition of the claimant was either of congenital origin or developed through normal stresses and strains in the aging process, the condition did not fall within the scope of a “disease condition” contemplated by this section. Young v. Long, 463 S.W.2d 326, 1971 Ky. LEXIS 584 ( Ky. 1971 ).

Where the medical evidence showed the claimant as having a 75 percent disability to his body as a whole, 25 percent of which was caused by the arousal into disabling reality of a preexisting congenital anomaly, the board concluded that the congenital anomaly was not a disease condition within the meaning of this section and absolved the special fund from liability. Young v. Chapman, 463 S.W.2d 921, 1971 Ky. LEXIS 594 ( Ky. 1971 ).

18. — — Dormant.

The question of whether a dormant disease condition exists is primarily a medical question and expert opinion evidence should be elicited with respect thereto. Young v. Bear Branch Coal Co., 434 S.W.2d 656, 1968 Ky. LEXIS 246 ( Ky. 1968 ).

A medical expert’s findings and conclusions regarding the existence of a dormant condition constituted substantial evidence to support an administrative law judge’s findings that an attack on the claimant while at work aroused his personality disorder and that this personality disorder attributed to one-half of his disability. Whittaker v. Chaffin, 2000 Ky. App. LEXIS 16 (Ky. Ct. App. Feb. 18, 2000).

19. — Evidence.

Where board denied claim for total disability, its decision was reversed in view of uncontradicted medical testimony that heart condition was work-connected, and negative testimony that condition could have occurred independently was insufficient to overcome affirmative evidence. Young v. Eastern Coal Corp., 408 S.W.2d 464, 1966 Ky. LEXIS 113 ( Ky. 1966 ).

Where the physician’s report was limited to a statement of a percentage of disability of the body, the Workers’ Compensation Board was entitled to consider other relevant evidence in making a determination of the extent of the claimant’s occupational disability. Whitis v. Southern Belle Dairy, Inc., 434 S.W.2d 645, 1968 Ky. LEXIS 241 ( Ky. 1968 ).

Whatever may be the degree of physical impairment established by the medical testimony, it is the obligation and duty of the board upon the whole evidence to determine the occupational disability of the claimant. Oaks v. Beth-Elkhorn Corp., 438 S.W.2d 482, 1969 Ky. LEXIS 401 ( Ky. 1969 ).

Although the independent doctor’s report was not binding on medical questions because exceptions to it were filed, the board had the right to treat the report as acceptable evidence. Young v. Ashland Oil & Refining Co., 442 S.W.2d 286, 1969 Ky. LEXIS 254 ( Ky. 1969 ).

Where two (2) physicians for the special fund read a set of X rays and came to two (2) different conclusions, their testimony did not have the effect of canceling each other and leaving the claimant’s physician’s report alone, for the testimony of either of the physicians for the special fund was enough to warrant the board’s inability to accept the judgment of the claimant’s physician. Blankenship v. Lloyd Blankenship Coal Co., 463 S.W.2d 62, 1970 Ky. LEXIS 664 ( Ky. 1970 ).

Where evidence as a whole authorized Board to find that the claimant became totally and permanently disabled solely as a result of 1968 back injury and not from prior spleen injury suffered four (4) years before and, under that finding, the employer was liable for compensation for total permanent disability, such finding was not in conflict with subsection (3) of this section. Republic Steel Corp. v. Justice, 464 S.W.2d 267, 1971 Ky. LEXIS 486 ( Ky. 1971 ).

Written report of examining physician which stated what he learned and what his conclusions were was complete, and it, together with a deposition of the same physician stating that claimant’s back injury was 100 percent disabling, was sufficient to support finding that claimant, who had preexisting heart and lung conditions, was disabled by the injuries sustained on the job alone. Owensboro River Sand & Gravel Co. v. Dickens, 466 S.W.2d 448, 1971 Ky. LEXIS 411 ( Ky. 1971 ).

Where the board-appointed examiner’s description of the arthritic condition did not place it in the category of a disease as the term has been construed for purposes of the compensation law, the entire liability was assigned to the employer. Adams & Mulberry Corp. v. Bolston, 487 S.W.2d 680, 1972 Ky. LEXIS 68 ( Ky. 1972 ).

Where the uncontradicted medical evidence was that the plaintiff suffered a disability from a 1961 accident for which he was compensated, this was a preexisting active condition, but such evidence was insufficient to support the board’s finding that plaintiff suffered from a preexisting dormant nondisabling condition which was brought into disabling reality. Yocom v. Payne, 512 S.W.2d 517, 1974 Ky. LEXIS 403 ( Ky. 1974 ).

Where medical testimony neither supported the finding of a preexisting condition that was dormant or nondisabling, nor supported the finding that preexisting condition was a disease, the Court of Appeals would not say that the apportionment of 25 percent of the accident and 50 percent to a combination of accident and preexisting dormant condition was erroneous, but held that it was error for the board to find the preexisting condition a “disease” condition, and thus the special fund had no liability. Yocom v. Fayard, 515 S.W.2d 614, 1974 Ky. LEXIS 238 ( Ky. 1974 ).

Although there was some medical testimony that claimant employee suffered from a dormant, nondisabling psychiatric disease, where other medical testimony indicated that the employee was in a totally disabling depressive state due to a combination of factors the evidence was sufficient to support board’s award order apportioning 60 percent liability to the employer and 40 percent to the special fund. Yocom v. Tri-County Sanitation Service, Inc., 522 S.W.2d 850, 1975 Ky. LEXIS 141 ( Ky. 1975 ).

Where the testimony of the treating physician, who performed the operation and observed the preexisting condition, explained in considerable detail why such a condition could be quickly identified in X-rays and was supported in part by a second physician, and where such evidence was totally disregarded, the finding of the Board holding the employer fully liable was set aside. Shedd Bartush Foods v. Bratcher, 568 S.W.2d 54, 1978 Ky. App. LEXIS 547 (Ky. Ct. App. 1978), rev'd, 578 S.W.2d 44, 1979 Ky. LEXIS 225 ( Ky. 1979 ).

Where there was no evidence other than the opinions from two (2) doctors and testimony from a coworker that claimant complained about his back or was in any way disabled by prior surgery on back, evidence was not sufficient to warrant a finding that claimant had an active disability within the meaning of KRS 342.620(11) (now KRS 342.0011(11)) at the time of his hiring. Allied Corp. v. Hornsby, 661 S.W.2d 480, 1983 Ky. App. LEXIS 350 (Ky. Ct. App. 1983).

In Stovall v. Dal-Camp, Inc., a heart attack case, the court held that where there was uncontradicted medical evidence that work-connected exertion would not have produced any disability absent the underlying nondisabling artherosclerotic condition, the entire award must be allocated against the Special Fund pursuant to this section; the rationale in Dal-Camp is not limited to heart attack cases. Accuride Corp. v. Donahoo, 865 S.W.2d 652, 1993 Ky. LEXIS 136 ( Ky. 1993 ).

20. Worker's Compensation Fund [Formerly Special Fund].

Although the Workers’ Compensation Board found that none of the claimant’s occupational disability was attributable to his work-related back injury alone and thus that his employer was not liable for payment of compensation, the Board’s finding did not preclude the imposition of liability for compensation on the special fund. Land v. Starks, 628 S.W.2d 346, 1981 Ky. App. LEXIS 316 (Ky. Ct. App. 1981).

The compensation which this section requires the special fund to pay is that which results from “a decrease in wage-earning capacity” of the employee, it does not require the fund to pay compensation for medical expenses the employee might incur. Claude N. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 1983 Ky. App. LEXIS 304 (Ky. Ct. App. 1983).

The term “employer” cannot be construed to include the special fund because the language of the relevant statutes and authorities treat employers and the special fund as separate and distinct entities. Claude N. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 1983 Ky. App. LEXIS 304 (Ky. Ct. App. 1983).

Since all liability to claimant was terminated by the lump-sum payment made by employer, there was nothing remaining for the Special Fund to do. Thus, the Workers’ Compensation Board was correct in holding employer solely liable and not requiring payment from the Special Fund to employer. Pennwalt Corp. v. Beale, 840 S.W.2d 830, 1992 Ky. App. LEXIS 226 (Ky. Ct. App. 1992).

Where evidence in the record of a discharge of the obligation in bankruptcy was essential to compel payment by the Special Fund and where employee failed to present such evidence, the order denying employee protection from the automatic stay was not sufficient evidence that employer’s liability on the injury and disease awards had been extinguished as it merely protected the debtor during the bankruptcy proceeding, and was not a discharge of the debt obligation itself. Newberg v. Jent, 867 S.W.2d 207, 1993 Ky. App. LEXIS 171 (Ky. Ct. App. 1993).

21. — Joinder as Party.

Where claimant was made aware of the contents of an examining physician’s letter summarizing her work related injury and apportioning the percentage of disability claimant had incurred to specific causes as of the date her claim was filed, and where claimant subsequently failed to name the Special Fund as a party within the time limitation specified by this section and further made no showing of good cause in her later motion to join the Special Fund as a party to the litigation, Board’s determination that the Special Fund should not have joined as a party was not error. Leistner v. Concession Air, 892 S.W.2d 567, 1994 Ky. LEXIS 157 ( Ky. 1994 ).

The Administrative Law Judge’s decision to continue the prehearing conference in order to allow for 45 days between the filing of worker claimant’s motion to join the Special Fund and the actual prehearing conference was an attempt to circumvent the language of this section as there was no showing of good cause in claimant’s motion and no finding of good cause made in the order granting joinder of the Special Fund. Leistner v. Concession Air, 892 S.W.2d 567, 1994 Ky. LEXIS 157 ( Ky. 1994 ).

This section barred recovery against the Special Fund where claimant was aware of the contents of doctor’s testimony at the time of his deposition, had sufficient time thereafter to move for joinder of the Special Fund, and had an obligation to protect her own interests by moving to name the Special Fund as a party to the claim but failed to file motion to join at least 45 days before prehearing conference and no showing of good cause was made. Dickerson v. Twentieth Century Hoov-R-Line, 893 S.W.2d 365, 1994 Ky. LEXIS 156 ( Ky. 1994 ).

A claim against the Special Fund was not barred by KRS 342.185 because joinder was not sought within two (2) years of the last voluntary temporary total disability payment where (1) there was no basis for determining that a portion of the claimant’s occupational disability was caused by a condition for which the Special Fund was liable until after the two (2) year limitations period had expired, (2) the motion to join the Special Fund was filed as soon as practicable after the evidence to support the liability of the Special Fund was produced, and (3) substantial evidence supported the decision to assign a portion of the liability for the claimant’s award to the Special Fund. Whittaker v. Byard, 25 S.W.3d 118, 2000 Ky. LEXIS 90 ( Ky. 2000 ).

22. — Reimbursement of Employer.

Once the Board determined that 1952 injury produced no apportionable disability in the injuries of 1967 or 1969, the board must determine what percentage of occupational disability was caused by each of those accidents independently and, as both were open and unadjudicated, liability for the independent occupational disability caused by each of the injuries falls on employer and the remaining percentage, if any, of the resulting occupational disability caused by the combination of the two injuries falls on the employer, but he is entitled to reimbursement to that extent from the special fund. Young v. Floyd County Mining Engineering Co., 460 S.W.2d 838, 1970 Ky. LEXIS 599 ( Ky. 1970 ).

Former subsection (4) of this section is not construed to require that an employer be self-insured in order to have reimbursement. Young v. Newsome, 462 S.W.2d 908, 1971 Ky. LEXIS 558 ( Ky. 1971 ).

Where the employee was totally and permanently disabled from the time his injury occurred it was error for the board to rule that payments made by the employer to the employee until final determination were for temporary total disability and not subject to reimbursement from the special fund. Young v. Johnson County Board of Education, 479 S.W.2d 638, 1972 Ky. LEXIS 315 ( Ky. 1972 ).

Because the disability retirement benefit was part of claimant’s overall employment compensation package with his employer as provided by claimant’s collective bargaining agreement through his union and was not a result of the employer’s generosity or largess in providing the disability benefit, there was no substantial evidence to support the ALJ’s award of a credit to the employer for payments previously made to claimant under the disability retirement plan. GAF Corp. v. Barnes, 906 S.W.2d 353, 1995 Ky. LEXIS 110 ( Ky. 1995 ).

Whether an employer is entitled to a credit against its workers’ compensation liability for benefits paid pursuant to a disability benefit plan depends upon all relevant factors including unilateral funding of the plan by the employer, the duration and conditions of coverage under the plan, and whether the plan contains its own internal off-set provisions. The fundamental question is whether the plan fulfills the same purpose as workers’ compensation, if so, then a credit is proper in order to avoid a duplication of benefits. GAF Corp. v. Barnes, 906 S.W.2d 353, 1995 Ky. LEXIS 110 ( Ky. 1995 ).

23. — Party to Proceedings.

Order overruling motion to make the special fund a party was not appealable. Seidl v. Willen, 411 S.W.2d 29, 1967 Ky. LEXIS 448 ( Ky. 1967 ).

Where an award was made against the special fund but the special fund was not made a party until the entry of the award, the case was remanded to the Workers’ Compensation Board for such further proceedings as necessary to provide the special fund a reasonable opportunity to defend. Young v. Allen, 439 S.W.2d 81, 1969 Ky. LEXIS 364 ( Ky. 1969 ).

Where the special fund must be joined as a party, it must be joined in time to enable the special fund to defend. Young v. Allen, 439 S.W.2d 81, 1969 Ky. LEXIS 364 ( Ky. 1969 ).

Where, after the claimant’s evidence was commenced, he made a motion to join the special fund and moved for the appointment of an examining physician, but the evidence in the record did not establish a controversy about a medical question nor did it disclose the necessity of determining a medical question necessary to proper apportionment, the claimant was not prejudiced by the denial of the motions. Young v. Arms, 465 S.W.2d 57, 1971 Ky. LEXIS 429 ( Ky. 1971 ).

Although by claimant’s testimony it did not affect the same portion of the body, the fact that there had been an earlier disabling accident was authority for making the special fund a party and for appointment of a physician to make an examination and report. Day v. Adams Stone Corp., 475 S.W.2d 477, 1971 Ky. LEXIS 69 ( Ky. 1971 ).

Since the primary liability as far as the employee was concerned was on the employer, with the special fund’s liability being simply to reimburse the employer, the responsibility for ascertaining that the special fund was properly made a party defendant rested on the employer and having failed to do so, the employer was liable for the entire award. Yocom v. Milish, 497 S.W.2d 702, 1973 Ky. LEXIS 359 ( Ky. 1973 ).

A motion to join the special fund as a party defendant is timely when made after submission of the case for opinion and judgment but before the rendition of the final award. Winston Ford Constr. Co. v. Maggard, 560 S.W.2d 562, 1977 Ky. App. LEXIS 879 (Ky. Ct. App. 1977).

Where special fund was not party to original compensation agreement but motion to reopen was granted based on change in extent of disability, the fund was properly made a party to such proceeding. Yocom v. Helm, 562 S.W.2d 97, 1978 Ky. App. LEXIS 468 (Ky. Ct. App. 1978).

Where, prior to entering into a settlement agreement, the employee had no opportunity to make the special fund a party, as the agreement and award were for temporary-total disability, but once the employee discovered the true nature and extent of his disability, he sought to make the special fund a party at his first opportunity to do so, and where there was no evidence that either party withheld any information from the other, the Board correctly reopened the award, made the special fund a party, and apportioned the award. American Standard, Inc. v. Stephen, 565 S.W.2d 158, 1978 Ky. App. LEXIS 505 (Ky. Ct. App. 1978).

Where evidence showed a preexisting congenital deformity of the back prior to a work-related injury, the special fund was properly joined as a party. Shedd Bartush Foods v. Bratcher, 568 S.W.2d 54, 1978 Ky. App. LEXIS 547 (Ky. Ct. App. 1978), rev'd, 578 S.W.2d 44, 1979 Ky. LEXIS 225 ( Ky. 1979 ).

Where claimant’s disability had been developing after exposure for approximately six years, it was error, under the terms of KRS 342.316(13)(a) (now (4)(a)), to dismiss the special fund as a party. Louisville v. Laun, 580 S.W.2d 232, 1979 Ky. App. LEXIS 392 (Ky. Ct. App. 1979).

The special fund cannot be made a party in reopenings where it was not a party to the original litigation between the employer and the employee. Wells v. Cotton, 650 S.W.2d 266, 1983 Ky. App. LEXIS 288 (Ky. Ct. App. 1983).

This section permits the special fund to be brought into the case only by a party during pendency of the action or by the board prior to rendition of the final award; neither the board nor a party is given express statutory authority to make the fund a party after the award is rendered. Wells v. Cotton, 650 S.W.2d 266, 1983 Ky. App. LEXIS 288 (Ky. Ct. App. 1983).

Where the employer’s appeal is based upon the underlying entitlement of the claimant to an award, the special fund need not pursue a separate appeal on its own behalf in order to benefit from the success of the employer’s appeal. The Special Fund never suffers direct liability; it is only a source of funds for satisfaction of liability imposed upon the employer under given conditions. Holbert v. Wickes Lumber Supply, 683 S.W.2d 946, 1984 Ky. App. LEXIS 545 (Ky. Ct. App. 1984).

24. — Liability.

Injured employee was entitled to receive compensation benefits from the subsequent injury fund (now special fund) under the terms of former subsection (1) unless, under subsection (2), the permanent disability resulting from the condition of employee’s left eye was caused by disease. Combs v. Gaffney, 282 S.W.2d 817, 1955 Ky. LEXIS 260 ( Ky. 1955 ).

This section did not impose liability on the subsequent claim fund (now special fund) for weekly compensation payments for any week during which the worker was not in the employ of his former employer at wages equal to or exceeding his former wages. Kentucky Mountain Coal Co. v. Witt, 358 S.W.2d 517, 1962 Ky. LEXIS 187 ( Ky. 1962 ).

The subsequent claim fund (now special fund) was liable when a present injury combined with the preexisting permanent partial disability to produce a disability greater than that of the present injury alone and exceeding the total of the previous plus the present injury disabilities. Nashville Coal, Inc. v. Drake, 371 S.W.2d 859, 1963 Ky. LEXIS 118 ( Ky. 1963 ) (decision prior to 1960 Amendment).

The subsequent claim fund (now special fund) is chargeable with the degree of disability in excess of that caused by the mathematical addition of the two disabilities and the employer is only liable for the amount of disability arising from the subsequent injury upon which the claim is based. Roaring Fork Coal Co. v. Wilder, 380 S.W.2d 271, 1964 Ky. LEXIS 310 ( Ky. 1964 ).

A dormant, nondisabling, preexisting degenerative disc in itself is not a disease condition for which the special fund is liable under this section. Young v. City Bus Co., 450 S.W.2d 510, 1969 Ky. LEXIS 22 ( Ky. 1969 ).

Whether the preexisting condition was one of disease or otherwise, the board had the duty to relieve the special fund of liability when it found that the preexisting condition played no part in the claimant’s current disability. Young v. Polly, 458 S.W.2d 780, 1970 Ky. LEXIS 190 ( Ky. 1970 ).

While the disability of the combined injuries sustained by the employee in the accident was temporary in nature, a permanent disability in the form of arteriosclerosis was caused and brought about by the arousal of the dormant, nondisabling, preexisting disease condition for which the special fund was liable. Purchase Area Economic Opportunity Council, Inc. v. Workmen's Compensation Board, 459 S.W.2d 604, 1970 Ky. LEXIS 142 ( Ky. 1970 ).

Where the preexisting disease was active rather than dormant and contributed to the disability, neither the employer nor the special fund was liable for the percentage of the resulting disability attributed to the disease condition. Young v. Young, 460 S.W.2d 832, 1970 Ky. LEXIS 598 ( Ky. 1970 ).

Since the liability of special fund rests solely on provisions of this section and it always has been construed to apply only to permanent disability, and furthermore since the evidence warrants the finding that the temporary disability was attributable primarily to work-connected injury, liability, including duty to reimburse the employer for payments it had voluntarily made for temporary total disability, could not be imposed on the special fund. Proven Products Sales & Service v. Crutcher, 464 S.W.2d 800, 1971 Ky. LEXIS 497 ( Ky. 1971 ).

Where the board-appointed physician classified employee’s preexisting degenerative disc condition as a disease condition and the special fund did not appeal from the order of the board against itself or except to the medical report, and the employer did not question it in that regard, circuit court erred in directing that liability for permanent disability be placed on employer rather than on special fund. Proven Products Sales & Service v. Crutcher, 464 S.W.2d 800, 1971 Ky. LEXIS 497 ( Ky. 1971 ).

Where the appointed physician’s report showed that the claimant had neither a preexisting disease nor disability within the meaning of this section but showed an aggravation of a preexisting condition which was of the type that does not impose liability on the special fund, it was error to impose liability on the special fund. Young v. Woolum, 468 S.W.2d 258, 1971 Ky. LEXIS 320 ( Ky. 1971 ).

Where the claimant’s obesity and hypertrophic arthritis contributed to the disabling condition her injury produced, but neither condition made this section applicable, the special fund was properly discharged and the entire liability fell upon the employer. Central Uniform Rentals v. Richburg, 468 S.W.2d 268, 1971 Ky. LEXIS 324 ( Ky. 1971 ).

Where the claimant was totally and permanently disabled as the result of an accident and had a preexisting degenerative disc which was not a disease, the special fund was not liable. Young v. Tackett, 468 S.W.2d 319, 1971 Ky. LEXIS 342 ( Ky. 1971 ).

Where claimant had lost the sight of his right eye in an industrial accident in 1969 and the sight of his left eye when he was 12 years old and for which he was uncompensated, there must be excluded from the remaining compensation the compensation that he would have received had it been compensated so that 100 weeks must be excluded for his first disabling injury, with the balance reimbursable by the special fund. Young v. Kentucky Baptist Hospital, 483 S.W.2d 148, 1972 Ky. LEXIS 179 ( Ky. 1972 ).

The doctrine of equitable estoppel could not bind the special fund to any liability to a miner, disabled by silicosis, on the ground that an agent of the miner’s employer, which had not accepted the act, made representations to the miner that it had done so. Yocom v. Jackson, 491 S.W.2d 842, 1973 Ky. LEXIS 610 ( Ky. 1973 ).

Where a miner, whose disability from silicosis was uncontested, claimed compensation from his employer, which had not accepted the act, and from the special fund on the theory of equitable estoppel on the basis of misrepresentation by an agent of the employer to him that it had accepted the act, the special fund could not be held liable since the employer and its agent were strangers to the fund and equitable estoppel could not operate to bind a stranger. Yocom v. Jackson, 491 S.W.2d 842, 1973 Ky. LEXIS 610 ( Ky. 1973 ).

Where the special fund did not appeal from circuit court judgment directing the board to apportion claimant’s award between it and the employer, and where the fund failed to seek judicial review of subsequent board order apportioning 40 percent of liability for employee’s award to it, the special fund was bound by the order and remained liable for 40 percent of the award even though claimant’s totally disabling depressive state was not covered by this statute. Yocom v. Tri-County Sanitation Service, Inc., 522 S.W.2d 850, 1975 Ky. LEXIS 141 ( Ky. 1975 ).

Where the Workers’ Compensation Board finds that a preexisting dormant condition might have been aroused into disabling reality by a subsequent injury or occupational disease, the employer can shift partial responsibility to the special fund even though the condition is not caused by “disease” according to the ordinary meaning of the term, and spondylolisthesis falls within this covered category. Yocom v. Gibbs, 525 S.W.2d 744, 1975 Ky. LEXIS 107 ( Ky. 1975 ).

Where employee with preexisting functional impairment of right eye suffered injury to left eye, the special fund was liable for the percentage of disability in excess of the portion that was noncompensable and the portion for which the employer was liable. Yocom v. Spalding, 547 S.W.2d 442, 1977 Ky. LEXIS 397 ( Ky. 1977 ).

Where a permanently totally disabled claimant had a preexisting noncompensable disability contributing 30 percent to the total disability and had a subsequent industrial accident contributing 35 percent to the total disability, the special fund was liable for the difference between maximum total permanent disability payment and the sum of employer’s liability and the noncompensable exclusion. Yocom v. Layne, 553 S.W.2d 52, 1977 Ky. LEXIS 472 ( Ky. 1977 ).

Where there was a question of a preexisting disabling disease condition, it was proper to join the fund as a party, but the fund is not liable for the active disability of a preexisting disease. Armco Steel Corp. v. Lyons, 561 S.W.2d 676, 1978 Ky. App. LEXIS 471 (Ky. Ct. App. 1978).

The special fund is entitled to credit against its liability for all sums awarded because of a traumatic injury, and the injury award cannot be held in abeyance for the tenure of the occupational disease award. Yocom v. Island Creek Coal Co., 568 S.W.2d 58, 1978 Ky. App. LEXIS 549 (Ky. Ct. App. 1978).

Subsection (4) (now (2)) of this section is available only to reduce the liability of the special fund and not to reduce the liability of the employer. Transport Motor Express, Inc. v. Finn, 568 S.W.2d 509, 1977 Ky. App. LEXIS 922 (Ky. Ct. App. 1977).

The special fund was not liable where the testimony of the physicians, without exception, described the “dormant preexisting condition” as totally work-related, and where there was not one line of evidence that as a result of any of the previous injuries the claimant became functionally or occupationally disabled but, in fact, he returned each time to the same job which involved lifting of heavy materials. Jones & Laughlin Steel Corp. v. Goben, 600 S.W.2d 481, 1980 Ky. App. LEXIS 326 (Ky. Ct. App. 1980).

Any period for which benefits are paid that is followed by a period of work time is a temporary disability for which the employer is liable under the workers’ compensation statutes. All time subsequent to the last day or date of the claimant’s work record must of necessity be designated as permanent disability, even though it may have been called temporary total because the employer was making voluntary payments prior to the board’s final award; accordingly, it is not the date of the injury which determines the liability question but rather the date of cessation of work entirely. Island Creek Coal Co. v. De Moss, 621 S.W.2d 509, 1981 Ky. App. LEXIS 289 (Ky. Ct. App. 1981).

Where claimant sustained injuries in 1976, from which he suffered no disability, and was re-injured in 1977 but continued working for several months following which his employer voluntarily paid compensation benefits for almost a year, and where claimant then returned to work for approximately six (6) months after which he ceased to work entirely, the special fund was not liable, under subsection (3) (now (2)) of this section, for benefits covering the period of time when claimant was actually working since the period of permanent disability only commenced subsequent to the claimant’s last working day. Island Creek Coal Co. v. De Moss, 621 S.W.2d 509, 1981 Ky. App. LEXIS 289 (Ky. Ct. App. 1981).

This section shifts the liability for payment of compensation to the special fund, but it does not render an otherwise compensable injury noncompensable; accordingly, where the injury which aroused a claimant’s dormant condition, resulting in total disability, was not itself compensable, liability could still be imposed on the fund for all of the compensable disability. Land v. Burden, 626 S.W.2d 221, 1981 Ky. App. LEXIS 307 (Ky. Ct. App. 1981).

The liability of the special fund created by former subsection (5) in its use of “The remaining compensation for . . . . . resulting condition . . . . . ” refers only to disability caused by the second or present injury, excess disability, and disability due to the arousal of a pre-existing dormant disease or condition. Beale v. Stratton, 779 S.W.2d 201, 1989 Ky. LEXIS 100 ( Ky. 1989 ).

If pre-hearing settlements between a worker’s compensation claimant and his employer are approved and commuted to a lump sum, the special fund has an immediate obligation to commence its payments to the employee, denying to the fund the privilege of permitting its money to remain at interest until the expiration of the weekly periods encompassed in the employer’s liability. Palmore v. Helton, 779 S.W.2d 196, 1989 Ky. LEXIS 74 ( Ky. 1989 ).

The special fund is not by any language in this statute required to compensate the employee for a pre-existing active disability; to hold otherwise could require the special fund to compensate an employee for a pre-existing disability for which he had already collected from a tortfeasor or employer, or for an injury barred by the Statute of Limitations, etc. Beale v. Stratton, 779 S.W.2d 201, 1989 Ky. LEXIS 100 ( Ky. 1989 ).

Where an employer and employee have arrived at a pre-award lump-sum settlement of a claim which releases the employer from liability and which has been approved by the administrative law judge, any liability on that claim which may later be assigned to the employer is extinguished upon payment of the agreed upon sum; such payment gives rise to an immediate obligation on the part of the Special Fund to commence payment on the portion of the award for which it is liable. Newberg v. Chumley, 824 S.W.2d 413, 1992 Ky. LEXIS 18 ( Ky. 1992 ).

The purpose of a subsequent injury fund is to encourage employers to hire workers who are disabled or who may become disabled due to the work-related arousal of an underlying physical condition. This is accomplished by holding the Special Fund responsible for compensating a worker for that portion of his occupational disability which is attributable to the arousal of a previously dormant condition or which is attributable to the excess disability which results because the latest disability is superimposed on a previous disability. Newberg v. Weaver, 866 S.W.2d 435, 1993 Ky. LEXIS 125 ( Ky. 1993 ).

Where claimant’s injury was substantially caused by her willful violation of a known safety rule, a 15% penalty reduction was properly imposed on the portion of her award to be paid by the employer pursuant to KRS 342.165 , and the Special Fund was required to pay the entire sum for which it was liable under this section. Whittaker v. McClure, 891 S.W.2d 80, 1995 Ky. LEXIS 6 ( Ky. 1995 ).

Prior to 1982 amendment of this section the employer was directly liable for payment of the entire award of income benefits to an injured worker and was reimbursed by the Special Fund to the extent of it’s liability. Since 1982 the employer and the Special Fund are in the posture of co-defendants in workers compensation cases and each is directly liable to the injured worker only for its portion of the overall award and the penalties under KRS 342.165 are applied to the portion of the award determined to be the liability of the employer. Whittaker v. McClure, 891 S.W.2d 80, 1995 Ky. LEXIS 6 ( Ky. 1995 ).

Since this section was amended in 1982, the employer and the Special Fund are now in the posture of co-defendants in workers’ compensation cases, the liability of the Special Fund is considered to be direct and not derivatives and as co-defendants, neither bears responsibility for the other’s liability. Dickerson v. Twentieth Century Hoov-R-Line, 893 S.W.2d 365, 1994 Ky. LEXIS 156 ( Ky. 1994 ).

Where disabled claimant was awarded benefits for life, and subsequently exceeded his projected life expectancy, the Special Fund was required to pay the entire weekly benefit for so long as claimant remained disabled. 803 KAR 25:070, Section 4, comports with the legislature’s intent to the extent that it provides for the Special Fund to pay the entire weekly benefit to an injured worker who outlived his projected life expectancy. Pickands Mather & Co. v. Newberg, 895 S.W.2d 3, 1995 Ky. LEXIS 40 ( Ky. 1995 ).

25. — Disability Pension Plan.

The liability of the special fund for an employee’s occupational disability is not simultaneous with that of the employer. The employer is required to pay all of its liability first and the Special Fund to pay its share last. There is no provision in this section for the acceleration of the liability of the Special Fund when an employer is given credit for future disability pension payments under a voluntarily established disability pension plan. American Standard v. Stinson, 888 S.W.2d 330, 1994 Ky. LEXIS 129 ( Ky. 1994 ).

26. — — Evidence.

Where the claimant filed exceptions to the report of the examining physician, the board was required to consider all relevant evidence to determine the extent and duration of the claimant’s disability and, if the evidence required it, to make an apportionment pursuant to this section. Johnson Drilling & Trucking Co. v. Johnson, 452 S.W.2d 389, 1970 Ky. LEXIS 353 ( Ky. 1970 ).

Where the evidence for the employer failed to establish the existence of a preexisting condition that was caused by disease, no liability could be assessed against the special fund under the very terms of this section. Young v. Polly, 458 S.W.2d 780, 1970 Ky. LEXIS 190 ( Ky. 1970 ).

Since in a “subsequent injury” case any liability of the special fund is to reimburse or indemnify the employer who is primarily liable, the employer has the burden of proving that the special fund was liable. Kentland Elkhorn Coal Co. v. Johnson, 549 S.W.2d 308, 1977 Ky. App. LEXIS 659 (Ky. Ct. App. 1977).

Trial court was not free to overturn the Workers’ Compensation Board’s apportionment of two-thirds of liability to the employer and one-third of the liability to the Special Fund, where the board based its conclusions on the testimony of a neurosurgeon, even though the neurosurgeon’s testimony appeared to contradict itself as to liability, and the conclusion reached by the board was supported by substantial evidence. Palmore v. Allgood, 767 S.W.2d 328, 1988 Ky. App. LEXIS 187 (Ky. Ct. App. 1988), overruled, Accuride Corp. v. Donahoo, 865 S.W.2d 652, 1993 Ky. LEXIS 136 ( Ky. 1993 ).

27. — Subrogation.

Where the injured worker sued a third party for damages for his injury and his employer and the special fund intervened for subrogation of claims awarded against them on the same injury, the dismissal of the special fund by the court did not operate as an adjudication on the merits that the special fund was to continue making payments, where the employer was released from further liability. Cabe v. Popham, 444 S.W.2d 910, 1969 Ky. LEXIS 239 ( Ky. 1969 ).

28. — Apportionment.

Where a preexisting permanent partial disability and a subsequent compensable injury combined to result in total permanent disability, it is mandatory upon the board to apportion the liability between the employer and the subsequent injury fund (now special fund) which was created under KRS 342.122 . Pioneer Coal Co. v. Sparks, 249 S.W.2d 725, 1952 Ky. LEXIS 844 ( Ky. 1952 ).

Where the claimant was determined to have a temporary total disability and was granted an open-end award, and there was evidence of a preexisting condition which was aggravated by the injury, it was proper to apportion the award between the employer and the special fund. Cabe v. Lexington Laundry Co., 423 S.W.2d 909, 1968 Ky. LEXIS 499 ( Ky. 1968 ).

A preexisting disease that was caused to become disabling by a work-connected injury is a compensable injury with the compensation award apportioned between the employer and the special fund. Cabe v. Bush, 424 S.W.2d 585, 1968 Ky. LEXIS 462 ( Ky. 1968 ).

Where, within the meaning of the Workers’ Compensation Law, the claimant was totally and permanently disabled after an injury aggravating a prior condition occurred, the award must be apportioned between the employer and the special fund. Oaks v. Beth-Elkhorn Corp., 438 S.W.2d 482, 1969 Ky. LEXIS 401 ( Ky. 1969 ).

Where the claimant was disabled by byssinosis from inhaling cotton fibers due to her hypersensitivity, the board was correct in apportioning the permanent partial 60 percent against the employer and 40 percent against the special fund. Ashland Crafts, Inc. v. Young, 451 S.W.2d 607, 1970 Ky. LEXIS 398 ( Ky. 1970 ).

Where all the parties recognized that the claimant’s “personality structure” was not a dormant disease condition within the meaning of this section, it was proper to absolve the special fund. Merit Clothing Co. v. Jewell, 459 S.W.2d 88, 1970 Ky. LEXIS 112 ( Ky. 1970 ).

If a subsequent injury would not alone and of itself have caused total disability, and the employe’s condition of disability following the subsequent injury is due to the combined effects of a previous disability and of the subsequent injury, this section undertakes to apportion the responsibility for payment of compensation benefits between the employer and the special fund. Young v. Young, 460 S.W.2d 832, 1970 Ky. LEXIS 598 ( Ky. 1970 ).

Where an employe is injured, returns to work and is injured again, if the second injury is independent and will in itself alone produce total and permanent disability, the employer is liable and no question of apportionment between the employer and the special claim fund under the second injury fund statute arises. Young v. Young, 460 S.W.2d 832, 1970 Ky. LEXIS 598 ( Ky. 1970 ).

The Board must regard the preexisting condition as a disease condition, dormant and nondisabling, or as a condition emanating from a disabling injury before apportionment can be had under this section. Young v. Fulkerson, 463 S.W.2d 118, 1971 Ky. LEXIS 573 ( Ky. 1971 ).

In action for compensation where employee suffered heart attack while at work, where the evidence showed that the claimant suffered from an underlying coronary condition which was a severe, progressive heart disease that the claimant was not aware of until after he had a heart attack, there was a clear case for apportionment and the board should determine the required division of liability between the employer and the fund. Young v. L. A. Davidson, Inc., 463 S.W.2d 924, 1971 Ky. LEXIS 595 ( Ky. 1971 ).

Where an employee had a preexisting, dormant and nondisabling coronary atherosclerosis which caused the employee to suffer a heart attack and aroused the disease into disabling reality, the Workers’ Compensation Board should have apportioned its award between the employer and the special fund. Kentucky Transport Corp. v. Headden, 471 S.W.2d 724, 1971 Ky. LEXIS 258 ( Ky. 1971 ).

Where the Workers’ Compensation Board determines that a claimant is totally and permanently disabled, the employer is liable for that portion of the disability the board ascribes to a work-connected injury, the special fund is liable for that portion ascribed to the arousal of a preexisting condition into disabling reality, while there is no compensation for that portion of the disability ascribed to the preexisting condition. Department of Economic Sec. v. Sizemore, 471 S.W.2d 733, 1971 Ky. LEXIS 261 ( Ky. 1971 ).

Apportionment of a workers’ compensation award to the special fund under this section does not apply where industry takes the worker as it finds him when an industrial accident is accentuated in its normal consequences by the existence of a latent, nondisabling, degenerative condition not caused by disease which is due to normal aging processes. Young v. Kentland-Elkhorn Coal Corp., 473 S.W.2d 119, 1971 Ky. LEXIS 142 ( Ky. 1971 ).

In a case involving two (2) injuries, if the board finds that the second injury alone would not have produced the disability, apportionment under this section becomes necessary. Ligon Preparation Plant Co. v. Hamilton, 482 S.W.2d 762, 1972 Ky. LEXIS 202 ( Ky. 1972 ).

In a double claim situation involving separate injuries in the same employment, the employer is liable for the disability attributable to the first injury alone and for the disability attributable to the second injury alone, and if the latter injury would independently have totally disabled the employee, the employer is liable for compensation for total disability; but if the second injury alone would not have totally disabled the employee, and if the evidence establishes that the degree of functional disability resulting from the combination of the two injuries is greater than that which would have resulted from simply adding the percentages of functional disability attributable to the injuries separately, the board must make an apportionment, assigning some percentage of occupational disability to the combination factor, and charge that against the special fund. Ligon Preparation Plant Co. v. Hamilton, 482 S.W.2d 762, 1972 Ky. LEXIS 202 ( Ky. 1972 ).

In a case involving two injuries, where the board found that the second injury alone would not have produced total disability, it could not refuse to assign some percentage of occupational disability to the percentage of functional disability that the doctors said resulted from the combination of the separate injuries, which percentage would be chargeable against the special fund. Ligon Preparation Plant Co. v. Hamilton, 482 S.W.2d 762, 1972 Ky. LEXIS 202 ( Ky. 1972 ).

As claimant lost the sight of his right eye in an industrial accident in 1969 and the sight of his left eye when he was 12 years old and for which he was not compensated, the amount for the uncompensated loss must be excluded from the remaining compensation for permanent and total disability chargeable to the special fund. Young v. Kentucky Baptist Hospital, 483 S.W.2d 148, 1972 Ky. LEXIS 179 ( Ky. 1972 ).

Where compensation carrier voluntarily made payments to injured employee, it was entitled to reimbursement from special fund when board determined that special fund should make payments with credit to compensation carrier for benefits already paid. Yocom v. Travelers Ins. Co., 502 S.W.2d 520, 1973 Ky. LEXIS 76 ( Ky. 1973 ).

Workers’ Compensation Board apportionment of a disability award between the employer and the special fund was proper where the board found that at the time of the claim, claimant was suffering from a preexisting dormant condition which might have been aroused into disabling reality by reason of the subsequent injury. Yocom v. Gibbs, 525 S.W.2d 744, 1975 Ky. LEXIS 107 ( Ky. 1975 ).

Since the percentage of occupational disability preexisting an injury is noncompensable, when an employee who already has a permanent functional impairment suffers a compensable injury, in that the injury itself causes some degree of occupational disability, this section requires an apportionment. Yocom v. Spalding, 547 S.W.2d 442, 1977 Ky. LEXIS 397 ( Ky. 1977 ).

In the case of an employee with a preexisting permanent functional impairment, the employer’s liability for a subsequent injury is limited to the percentage of occupational disability that would have resulted from the later injury alone had there been no preexisting functional impairment. Yocom v. Spalding, 547 S.W.2d 442, 1977 Ky. LEXIS 397 ( Ky. 1977 ).

Where the findings in a workers’ compensation case require apportionment, the employer is responsible for the extent of occupational disability attributable to the latest injury alone but the board has great leeway in translating functional impairment into occupational disability. George M. Eady Co. v. Stevenson, 550 S.W.2d 473, 1977 Ky. LEXIS 416 ( Ky. 1977 ).

Employer of permanently totally disabled employee who had a preexisting noncompensable disability contributing 30 percent to the total disability was liable for 35 percent of the maximum payment for permanent partial disability, which is the degree of disability which would have resulted from the subsequent industrial injury had there been no preexisting disability. Yocom v. Layne, 553 S.W.2d 52, 1977 Ky. LEXIS 472 ( Ky. 1977 ).

Where the slight injury to employee’s nose, suffered in a truck accident, would not have caused his death but for his preexisting heart disease, the Board was correct in limiting the degree of the employer’s liability to 5%, and it was immaterial whether the preexisting heart disease was disabling or not. Yocom v. Loy, 573 S.W.2d 645, 1978 Ky. LEXIS 413 ( Ky. 1978 ).

Where claimant had suffered a 25 percent permanent partial disability as a result of a work-related back injury and consequent arousal of dormant nondisability degenerative disc condition, and where the Board’s decision apportioning damages equally between special fund and employer was reasonable and supported by substantial evidence, it was reversible error for the Court of Appeals to substitute its judgment for that of the Board and impose liability entirely upon the special fund. Yocom v. Harvey, 578 S.W.2d 52, 1979 Ky. LEXIS 229 ( Ky. 1979 ).

In apportioning an award between the employer and the special fund, the Board should first determine the liability of the employer by multiplying the claimant’s average weekly wage at the time of injury by the appropriate percentage factor, as determined by the number of dependents multiplied by the percentage of occupational disability, subject to the maximum allowable weekly benefit. Yocom v. Hopkins, 548 S.W.2d 151, 1977 Ky. App. LEXIS 642 (Ky. Ct. App. 1977).

Under subsection (4) (now (5)) of this section, any prior occupational disability attributable to an employee’s preexisting heart disease should have been excluded in determining the percentage of causation for which the special fund was liable when the fatal heart attack occurred. Yocom v. Weinberger, 559 S.W.2d 168, 1977 Ky. App. LEXIS 860 (Ky. Ct. App. 1977).

Apportionments are required when a claimant has either a preexisting disability to be deducted from the claim, or when a dormant, nondisabling condition is aroused into disabling reality which is deductible by the employer, but paid for by the special fund; a situation may also exist when a prior disability is to be excluded and the remaining disability is apportioned between the employer and the fund because of the arousal of a dormant condition in addition to the preexisting disability. Armco Steel Corp. v. Lyons, 561 S.W.2d 676, 1978 Ky. App. LEXIS 471 (Ky. Ct. App. 1978).

Although the concept of an occupational disease (aplastic anemia) caused by a toxic agent (benzene) is new to Kentucky and to the Workers’ Compensation Board, the board did not err in apportioning liability on a 60/40 basis between the employer and the special fund. Certain-Teed Products Corp. v. Mitchell, 574 S.W.2d 910, 1978 Ky. App. LEXIS 634 (Ky. Ct. App. 1978).

Where the evidence showed that deceased employee had suffered a myocardial infarction while atop a trailer belonging to defendant employer attempting to cover a load of plywood with a heavy tarpaulin, that as a result of the myocardial infarction he lost consciousness and fell 12 feet to the concrete below where his skull was crushed killing him instantly, that the myocardial infarction was caused by his preexisting atherosclerosis acted upon by the work, that he had been alive when his head struck the concrete, and that he stood at 80-85 percent chance of survival had his head not struck the concrete, the Board’s finding apportioning liability 95 percent to the employer and 5 percent to the special fund was supported by the evidence, notwithstanding the fact, that had he survived, the bulk of the liability would have been apportioned to the special fund, since liability from such an idiopathic fall is placed on the employer in those cases where the nature of the employment places the employee in a position increasing the dangerous effects of the fall, where normally the employer would only be liable where the work was a substantial factor in causing the injury. Indian Leasing Co. v. Turbyfill, 577 S.W.2d 24, 1978 Ky. App. LEXIS 666 (Ky. Ct. App. 1978).

Where the medical evidence indicated that absent the preexisting arthritic condition claimant’s injury would have caused no permanent disability whatsoever, and that the entire permanent disability was a result of the arousal of the arthritic condition, the Board correctly apportioned the award so that the employer was liable for 100 percent of the temporary disability resulting from the injury and the special fund for 100 percent of the permanent disability resulting from the awakening of the preexisting condition. Yocom v. Devine, 577 S.W.2d 41, 1979 Ky. App. LEXIS 373 , 1979 Ky. App. LEXIS 543 (Ky. Ct. App. 1979).

Where the evidence showed that fire fighters have an increased tendency to coronary atherosclerosis, a finding by the Board that claimant was 30 percent occupationally disabled, apportioning 15 percent each to the employer and special fund, would have to be reversed and remanded since the Board failed to make findings as to what percentage of his disability was work related and what from other factors. Yocom v. Fortney, 583 S.W.2d 506, 1979 Ky. App. LEXIS 421 (Ky. Ct. App. 1979).

In determining how the amount due for whole disability should be apportioned between the employer and the special fund, the employer and the special fund should each be required to pay a share of the whole award based upon the ratio that their assigned percentages of disability bear to each other. River Coal Co. v. Mullins, 594 S.W.2d 875, 1979 Ky. LEXIS 320 ( Ky. 1979 ).

Where claimant suffered disability as a result of a lifetime of hard manual labor, his last employer would be liable for that percentage of claimant’s disability which was equal to the percentage of claimant’s worklife spent with such employer; the remainder of his disability was the responsibility of the special fund. Southern Kentucky Concrete Contractors, Inc. v. Campbell, 662 S.W.2d 221, 1983 Ky. App. LEXIS 340 (Ky. Ct. App. 1983).

Where employee incurred 50% permanent occupational disability caused by back injury and its arousal of a preexisting condition, and 50% permanent occupational disability due to pneumoconiosis, under law in effect in 1981, the employer and the Special Fund were each required to pay a share of his whole award based on the ratio that their assigned percentages of disability bore to each other. Sovereign Coal Corp. v. Adkins, 690 S.W.2d 129, 1985 Ky. App. LEXIS 521 (Ky. Ct. App. 1985).

The burden of apportionment rests upon the employer, and when the employer fails in this burden, the question is not whether an apportionment upon the Special Fund would have been justified or whether the court would have made such an apportionment, but whether the record compels such a finding. Wells v. Phelps Dodge Magnet Wire Co., 701 S.W.2d 411, 1985 Ky. App. LEXIS 672 (Ky. Ct. App. 1985).

Where the nature and duration of the claimant’s work aggravated her degenerative disc condition to the degree that her active disability was accelerated, the Worker’s Compensation Board erred in failing to apportion to the special fund, that portion of the disability that probably would exist regardless of the work and to the employer, the remainder, being the percentage attributable to the work. Wells v. Boyd, 715 S.W.2d 906, 1986 Ky. App. LEXIS 1227 (Ky. Ct. App. 1986).

Where the doctor assessed a 20% permanent functional impairment, apportioned ten percent to the impairment and ten percent to the preexisting condition, and testified that the work-related injury by itself would not have produced any active disability, there was sufficient evidence to support the Workers’ Compensation Board’s apportionment of 50% to the employer and 50% to the special fund. Island Creek Coal Co. v. Buckman, 714 S.W.2d 503, 1985 Ky. App. LEXIS 715 (Ky. Ct. App. 1986), overruled, Accuride Corp. v. Donahoo, 865 S.W.2d 652, 1993 Ky. LEXIS 136 ( Ky. 1993 ).

The Workers’ Compensation Board’s finding on apportionment is not easily disturbed; the burden rests upon the employer and when the employer fails in this burden, the question is not whether further apportionment upon the special fund would have been justified or whether the Court of Appeals would have made such an apportionment, but whether the record compels such a finding. Island Creek Coal Co. v. Buckman, 714 S.W.2d 503, 1985 Ky. App. LEXIS 715 (Ky. Ct. App. 1986), overruled, Accuride Corp. v. Donahoo, 865 S.W.2d 652, 1993 Ky. LEXIS 136 ( Ky. 1993 ).

The employer and the special fund are each required to pay a share of the whole award based upon the ratio that their assigned percentages of disability bear to each other, whether or not the two partial awards are rendered simultaneously or at different times. Ridgeway Coal Co. v. Church, 717 S.W.2d 510, 1986 Ky. App. LEXIS 1389 (Ky. Ct. App. 1986).

Former subsection (2) of this section was not intended to preclude the joinder of the special fund and apportionment of an award between it and an employer, if the evidence otherwise warranted an apportionment. Brown & Williamson Tobacco Corp. v. Harper, 717 S.W.2d 502, 1986 Ky. App. LEXIS 1178 (Ky. Ct. App. 1986).

Employer was properly allowed a $200 per week credit for payments made under a sickness and accident plan to an employee who was found permanently occupationally disabled from pnueumoconiosis and who was awarded $322.19 a week for life to be apportioned 25 percent to the employer and 75 percent to the Special Fund. Hatfield v. Eastern Coal Corp., 787 S.W.2d 274, 1990 Ky. App. LEXIS 51 (Ky. Ct. App. 1990).

Administrative law judge (ALJ) did not find a series of non-disabling mini-traumas or a gradual cumulative physical breakdown caused by employment, but found that employee had sustained two prior discrete work-related injuries resulting in a permanent occupational disability that had been settled for permanent partial disability; further the judge found there was no arousal of a pre-existing dormant condition either work-related of nonwork-related, but did find that a separate later occurrence was a distinct event of injury and correctly applied the law and apportioned the liability between the employer and the Special Fund. The ALJ’s characterization of this situation as a “garden variety” excess disability case warrants apportionment under this section. Beale v. Faultless Hardware, 837 S.W.2d 893, 1992 Ky. LEXIS 128 ( Ky. 1992 ).

Where the employee suffered workers’ compensation injuries in 1990 and 1994 affecting the same bodily functions while working for two (2) different employers, and the awards were apportioned between the employers and the special fund under former KRS 342.120 , the administrative law judge erred in applying the whole man theory in requiring the 1994 employer to pay 100 percent of the employee’s permanent total disability; former KRS 342.120 (7) required an exclusion for the pre-existing disability for which the employee had been previously compensated and precluded application of the whole man theory. Garrett Mining Co. v. Nye, 122 S.W.3d 513, 2003 Ky. LEXIS 231 ( Ky. 2003 ).

29. — — Procedure.

In apportionment cases the assignment of a functional impairment rating to a component factor is evidence that requires the assignment of a percentage of occupational disability to that factor in making the translations from functional impairment ratings to occupational disability a consistent approach to the component factors, for computation requires that the previous disabling condition to which a functional impairment rating is assigned must be equated to a percentage of occupational disability that represents the degree of occupational disability that existed immediately prior to the subsequent injury without regard to the effect of the subsequent injury. Young v. Young, 460 S.W.2d 832, 1970 Ky. LEXIS 598 ( Ky. 1970 ).

First the Board must determine whether the subsequent injury independently would have produced the entire disability and if so, there is no apportionment and the entire liability rests on the employer. Young v. Fulkerson, 463 S.W.2d 118, 1971 Ky. LEXIS 573 ( Ky. 1971 ).

The extent of disability remaining after deducting the portion attributable solely to the subsequent injury and the portion found as occupational disability immediately prior to the subsequent injury falls upon the special fund. Young v. Fulkerson, 463 S.W.2d 118, 1971 Ky. LEXIS 573 ( Ky. 1971 ).

Where apportionment is necessary, the Board must first determine the extent of occupational disability attributable to the subsequent injury alone, and the employer is responsible for the portion of the award ascribable alone to the subsequent injury. Young v. Fulkerson, 463 S.W.2d 118, 1971 Ky. LEXIS 573 ( Ky. 1971 ).

The Board had a duty to translate the functional impairment ratings determined by physician, appointed pursuant to KRS 342.121 (now repealed), into occupational disability and to apply the requirements of the apportionment statutes to the report. Young v. Tackett, 468 S.W.2d 319, 1971 Ky. LEXIS 342 ( Ky. 1971 ).

In apportionment cases some percentage of occupational disability must be assigned for each percentage of functional disability established by the evidence. Ligon Preparation Plant Co. v. Hamilton, 482 S.W.2d 762, 1972 Ky. LEXIS 202 ( Ky. 1972 ).

In apportioning award for heart attack suffered by truck driver with preexisting heart disease, the board should have determined the percentage of occupational disability existing prior to the truck accident which triggered the attack and the percentage of prior occupational disability should have been excluded in determining the percentage of causation for which the special fund was liable. Yocom v. Loy, 573 S.W.2d 645, 1978 Ky. LEXIS 413 ( Ky. 1978 ).

If apportionment is required by operation of this section, the formulas provided therein are applied to the total amount to which the claimant has been determined to be entitled in order to give effect, in terms of dollar amounts payable or nonpayable, to the apportionment between the interested parties, the employer, the employee and the special fund; such procedure gives effect to the exclusion language of former subsection (4) of this section. Transport Motor Express, Inc. v. Finn, 574 S.W.2d 277, 1978 Ky. LEXIS 419 ( Ky. 1978 ).

It is a distortion of the computation process and an impermissible nullification of the effect of the exclusionary language of former subsection (4) of this section to meld together the distinct formulas of that subsection and KRS 342.730 to achieve a simultaneous determination of the proportionate and total amounts due. Transport Motor Express, Inc. v. Finn, 574 S.W.2d 277, 1978 Ky. LEXIS 419 ( Ky. 1978 ).

As to any type of apportionment, the Board must first determine if the later injury alone and independently would have caused the resulting disability and, if so, no apportionment is necessary. Armco Steel Corp. v. Lyons, 561 S.W.2d 676, 1978 Ky. App. LEXIS 471 (Ky. Ct. App. 1978).

Where the claimant’s lump-sum payment for his earlier disability was a settlement, as permitted by KRS 342.150 , for a weekly amount to be paid over a period of time and such period of time overlapped with the time used in calculating the claimant’s permanent total disability, then, as to that overlapping period, the claimant could only be 100% disabled; thus, the employer and the special fund must be credited in proportion to the amount of their respective liabilities for the amount and duration of the overlapping period as found by the board and not the lump-sum award actually received by the claimant distributed over the time of the compensation. General Refractories Co. v. Herron, 566 S.W.2d 433, 1977 Ky. App. LEXIS 919 (Ky. Ct. App. 1977).

30. Recovery from Third Party.

It is the policy of the Workers’ Compensation Law to deny the employe any workers’ compensation, regardless of who is required to pay it, in the event he recovers from a third-party tortfeasor as much or more than the total amount of compensation recoverable. Cabe v. Popham, 444 S.W.2d 910, 1969 Ky. LEXIS 239 ( Ky. 1969 ).

31. Liability of Second Employer.

When a subsequent compensable injury arouses a nondisabling, dormant disease or condition into disabling reality, the liability of the employer is limited to compensation for disability which would have resulted from the subsequent injury alone had there been no preexisting disability or dormant but aroused disease or condition. Stovall v. Dal-Camp, Inc., 669 S.W.2d 531, 1984 Ky. LEXIS 228 ( Ky. 1984 ).

Since the employer bears the sole responsibility for the initial payments of an award under former subsection (4) of this section, it is likewise solely responsible for payment of interest on its obligations to the claimant which have been postponed by the litigation process. A & K Coal Co. v. Blankenship, 708 S.W.2d 638, 1986 Ky. LEXIS 261 ( Ky. 1986 ).

32. Procedure.

Where employer failed to invoke the procedure for apportionment as prescribed by this section, such employer did not preserve for review a claim of error in the board’s failure to apportion. Department of Finance v. Wright, 425 S.W.2d 740, 1968 Ky. LEXIS 434 ( Ky. 1968 ).

Where the Board found that the claimant’s disorder did not result from a preexisting dormant but nondisabling disease condition, the finding being ambiguous, a remand for taking medical proof on the question of whether or not the employe’s condition was a disease condition and for specific findings on the requisite factors for apportionment was proper. Young v. Bear Branch Coal Co., 434 S.W.2d 656, 1968 Ky. LEXIS 246 ( Ky. 1968 ).

Where the argument that employee suffered from a preexisting noncompensable occupational disability was never raised by the special fund before the board, the circuit court did not err in dismissing the special fund’s appeal from the award of the Board. Yocom v. Loy, 573 S.W.2d 645, 1978 Ky. LEXIS 413 ( Ky. 1978 ).

Since making the special fund a party and considering apportionment of an award is an issue that can be raised or considered upon an original application for benefits, then that issue can be considered in a proceeding to reopen a claim. American Standard, Inc. v. Stephen, 565 S.W.2d 158, 1978 Ky. App. LEXIS 505 (Ky. Ct. App. 1978).

Where the evidence established that a medical question was in controversy, i.e., whether the claimant had a preexisting bone condition, dormant and nondisabling prior to the injury, a determination thereof being necessary to a proper apportionment, the omission to appoint a KRS 342.121 (now repealed) physician was not harmless, regardless of the amount apportioned to the special fund by that physician, and the judgment would be reversed with directions to the Board to appoint a physician. Chestnut Flats Coal Co. v. Jones, 565 S.W.2d 650, 1978 Ky. App. LEXIS 515 (Ky. Ct. App. 1978).

33. Subsequent Independent Injury.

If there is a case in which work-connected exertion or stress causes a heart attack independent of the arousal of underlying arteriosclerosis as a contributing factor, the award must be assessed entirely against the employer because in such a case none of the disability could be attributed to arousal of a preexisting condition. Stovall v. Dal-Camp, Inc., 669 S.W.2d 531, 1984 Ky. LEXIS 228 ( Ky. 1984 ).

In subsequent injury cases, there are three factors to be considered. First, there is the effect upon the claimant of the subsequent injury to the degree the latter injury contributed to the amount of the resulting disability. Second, there is the arousal of any dormant or non-disabling disease or condition. These are both compensable. Third in the consideration of subsequent injury cases is the degree of occupational disability which existed immediately prior to the subsequent injury, without regard to the effect of the subsequent injury. This is what has become categorized as active disability, and is not compensable. Wells v. Bunch, 692 S.W.2d 806, 1985 Ky. LEXIS 246 ( Ky. 1985 ).

Apportionment is unnecessary under this section if the Workers’ Compensation Board finds that the subsequent injury alone caused the full disability. Jenkins-Essex Co. v. Dailey, 705 S.W.2d 949, 1986 Ky. App. LEXIS 1087 (Ky. Ct. App. 1986).

Where previously the employee had a 19% occupational disability and in this case the Workers’ Compensation Board dismissed the Special Fund, calculated a 100% total disability award, and ordered the employer to pay 81% of that amount, the Board’s dismissal of the Special Fund and imposition of the entire liability for the award on the employer implied the finding that the second injury was totally disabling and the Board simply excluded the amount which the employe had already received from his employer in an effort to prevent a double recovery. Jenkins-Essex Co. v. Dailey, 705 S.W.2d 949, 1986 Ky. App. LEXIS 1087 (Ky. Ct. App. 1986).

34. Payments Prior to Final Determination.

Where an employee was totally and permanently disabled from the time his injury occurred, it was error for the board to rule that payments made by the employer to the employe until the final determination were for temporary total disability. Land v. Peabody Coal Co., 619 S.W.2d 501, 1981 Ky. App. LEXIS 266 (Ky. Ct. App. 1981).

35. Compensation.

The word “compensation” cannot automatically be deemed to include both medical and income benefits whenever it appears in the workers’ compensation law, rather, its meaning must be determined by the context in which it appears in a given statute; in the context of this section, the word “compensation” must be construed as referring only to income benefits. Claude N. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 1983 Ky. App. LEXIS 304 (Ky. Ct. App. 1983).

For formula for computing apportionment of award when an employee is totally and permanently disabled by a combination of an injury and an occupational disease, see Beale v. Shepherd, 809 S.W.2d 845, 1991 Ky. LEXIS 20 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 91 (Ky. July 3, 1991).

When a claimant suffered an injury rendering him occupationally permanently and totally disabled during the compensable period of an earlier work-related injury, the earlier injury became compensable as a permanent, total disability rather than as a permanent, partial disability because of the differences in KRS 342.730(1)(a) and (b). Thus, the two injuries combined caused overall disability greater than the later injury alone would have caused; and, under former subsection (6) of this section, the employer during the later injury is liable only for the percentage of disability attributed to the later injury. The “excess disability” resulting from the effect of the combination of the injuries is attributable to the Special Fund under former subsection (7) of this section. Fleming v. Windchy, 953 S.W.2d 604, 1997 Ky. LEXIS 46 ( Ky. 1997 ), amended, 1997 Ky. LEXIS 123 (Ky. Oct. 30, 1997).

The Special Fund must begin payout of Workers’ Compensation benefits on the date of settlement approval, not as of date of injury or after the final payment under the employer-employee settlement agreement, in which the employer paid a lump sum followed by monthly payments. Spurlin v. Woods, 954 S.W.2d 309, 1997 Ky. LEXIS 25 ( Ky. 1997 ), modified, 1997 Ky. LEXIS 132 (Ky. Oct. 30, 1997).

36. Gradual Injury.

Where employee developed lateral epicondylitis (“tennis elbow”) after 15 years of assembly line work, the condition was classifiable as a gradual type of injury under this section instead of an occupational disease under KRS 342.316 . O.K. Precision Tool & Die Co. v. Wells, 678 S.W.2d 397, 1984 Ky. LEXIS 291 ( Ky. 1984 ).

37. Life Expectancy Table.

Until such time as a life expectancy table is adopted pursuant to former subdivision (6)(b) of this section which most accurately reflects the modern life expectancy trends, the most recent judicially recognized table, the Life Expectancy and Annuity Table, must serve. Stovall v. Great Flame Coal Co., 684 S.W.2d 3, 1984 Ky. App. LEXIS 506 (Ky. Ct. App. 1984).

In calculating workers’ compensation benefits for coal worker affected with pneumoconiosis, the Life Expectancy Annuity Table should have been used rather than the American Experience Table of Mortality, as it was the most recent judicially recognized table and it more accurately and reliably reflected life expectancy. Palmore v. E & R Chumley Trucking Co., 761 S.W.2d 181, 1988 Ky. App. LEXIS 188 (Ky. Ct. App. 1988).

38. Appellate Review.

Where all compensation awarded was ordered to be paid initially by the employer for the number of weeks proportionate to its liability, and the Special Fund would pay all compensation for the remainder of the compensable period directly to the claimant, and because the coal company was uninsured and did not qualify as self-insured, the Workers’ Compensation Board further provided that the Uninsured Employers’ Fund would become liable only after return of a writ of execution of “no property found,” the court erred in altering the payment method ordered by the Board and mandated by subdivision (13)(a) of KRS 342.316 (now subdivision (4)(a) of KRS 342.316 ). Wells v. Blair, 736 S.W.2d 346, 1987 Ky. App. LEXIS 471 (Ky. Ct. App. 1987).

39. Payments.

The fact that the Special Fund must commence payment at a date earlier than anticipated does not entitle the employee to receive, during his life expectancy, an amount of benefits greater than that which is authorized by KRS 342.732 : it merely accelerates the date upon which payment must commence and, as a result, the date upon which payment of the amount of benefits which fall during the claimant’s life expectancy is complete; if the claimant should live beyond the age of his anticipated life expectancy, payment would, of course, resume for so long as he lives. Newberg v. Chumley, 824 S.W.2d 413, 1992 Ky. LEXIS 18 ( Ky. 1992 ).

Where employer was responsible for paying all the benefits during the first half of the claimant’s projected life expectancy, and the Special Fund would have been liable thereafter, the “law of the case” doctrine barred employer from seeking reimbursement from the Special Fund where claimant remarried, because on direct appeal it was determined that it was constitutional for this section to expose the employer to first liability. Pennwalt Corp. v. Beale, 840 S.W.2d 830, 1992 Ky. App. LEXIS 226 (Ky. Ct. App. 1992).

In order to comply with the public policy considerations embodied in the Workers’ Compensation Act, periodic payments may not extend beyond the percent of the workers’ life expectancy represented by the percent of disability to which the parties have agreed. Newberg v. Weaver, 866 S.W.2d 435, 1993 Ky. LEXIS 125 ( Ky. 1993 ).

The Worker’s Compensation Act does not authorize treating the liability of the employer and the Special Fund for an award of income benefits under this section any differently because the benefits are paid to or on behalf of the worker’s surviving dependents rather than to the injured worker, himself. Whittaker v. Randall Foods, 895 S.W.2d 571, 1995 Ky. LEXIS 44 ( Ky. 1995 ).

Former subsection (8) of this section, as amended on April 4, 1994, was intended to apply to all cases pending at that time; thus payment by the special fund was to be made in accordance with the amended provisions and award of income benefits to claimant, having previously settled with employer on claim of pneumoconiosis and totally occupationally disabled as a result, were to be paid from the special fund over the maximum period provided for by statute. Miracle v. Riggs, 918 S.W.2d 745, 1996 Ky. App. LEXIS 44 (Ky. Ct. App. 1996).

Under KRS 342.120 , payment periods under a workers’ compensation award are based upon the shares of the total benefits that are awarded, and an employer pays its entire liability first. Just as an employer is not required to pay additional benefits if a worker outlives his or her projected life expectancy, its payment period is not shortened if a post-award change in the facts causes benefits to cease before the entire award is paid out. Whittaker v. Hall, 132 S.W.3d 816, 2004 Ky. LEXIS 6 ( Ky. 2004 ), modified, 2004 Ky. LEXIS 128 (Ky. May 20, 2004).

40. Nonwork-Related and Work-Related Aggravation.

Where a compensable condition is aggravated by work-related as well as nonwork-related factors, the entire condition, including the nonwork-related portion which became manifest concurrently with the work-related aggravation, must be considered when determining disability rating. Jett v. Peabody Coal Co., 828 S.W.2d 646, 1992 Ky. LEXIS 52 ( Ky. 1992 ).

41. Disability Benefits.

Employer was not entitled to credit against a workers’ compensation award for monthly disability benefits it paid to employee from a disability pension plan, which employer fully funded for its employees. Eastern Coal Corp. v. Mullins, 845 S.W.2d 27, 1993 Ky. App. LEXIS 4 (Ky. Ct. App. 1993).

The 1990 amendment to KRS 342.1202 represented only a clarification of the legislature’s continuing policy of holding employers liable for all temporary total disability (TTD) benefits rather than evidence of a change in that policy only for cases involving conditions of the back and heart. Central State Hosp. v. Gray, 880 S.W.2d 557, 1994 Ky. LEXIS 70 ( Ky. 1994 ).

42. — Pension Plan.

Voluntary establishment of a disability pension plan under which the employee drew disability benefits was not a settlement of the workers’ compensation claim. Liability of the employer under such a plan was a separate liability; the employer had not made full payment of its obligation under the compensation award and this section simply because it paid benefits under the voluntary disability plan. American Standard v. Stinson, 888 S.W.2d 330, 1994 Ky. LEXIS 129 ( Ky. 1994 ).

Cited:

Locomotive Coal Co. v. Jordan, 276 Ky. 123 , 122 S.W.2d 975, 1938 Ky. LEXIS 51 7 ( Ky. 1938 ); Garmeada Coal Co. v. Davis, 310 Ky. 639 , 221 S.W.2d 622, 1949 Ky. LEXIS 987 (1949); Shuman Co. v. May, 327 S.W.2d 14, 1959 Ky. LEXIS 64 ( Ky. 1959 ); Shepherd v. Laurel Branch Coal Co., 335 S.W.2d 943, 1960 Ky. LEXIS 304 ( Ky. 1960 ); Alva Coal Corp. v. Ealy, 367 S.W.2d 833, 1963 Ky. LEXIS 29 ( Ky. 1963 ); Deby Coal Co. v. Caldwell, 383 S.W.2d 905, 1964 Ky. LEXIS 61 ( Ky. 1964 ); Beverly Coal Co. v. Smith, 396 S.W.2d 65, 1965 Ky. LEXIS 99 ( Ky. 1965 ); Green Valley Coal Co. v. Carpenter, 397 S.W.2d 134, 1965 Ky. LEXIS 63 ( Ky. 1965 ); Russell Constr. Co. v. Workmen’s Compensation Board, 397 S.W.2d 357, 1965 Ky. LEXIS 81 (Ky. 1965); Fraley v. Rusty Coal Co., 399 S.W.2d 479, 1966 Ky. LEXIS 466 ( Ky. 1966 ); C. F. Replogle Co. v. McGuire, 405 S.W.2d 201, 1966 Ky. LEXIS 247 ( Ky. 1966 ); Cabe v. Toler, 411 S.W.2d 41, 1967 Ky. LEXIS 45 5 ( Ky. 1967 ); Cabe v. Splash Dam By-Products Coal Corp., 416 S.W.2d 361, 1967 Ky. LEXIS 273 ( Ky. 1967 ); Walker v. Porter Product Finishers, Div. of Porter Paint Co., 505 S.W.2d 178, 1974 Ky. LEXIS 770 ( Ky. 1974 ); Yocom v. Jordan Auto Parts Co., 521 S.W.2d 519, 1975 Ky. LEXIS 159 ( Ky. 1975 ); Davis v. Baker, 530 S.W.2d 370, 1975 Ky. LEXIS 51 ( Ky. 1975 ); Davis v. Comer, 532 S.W.2d 12, 1975 Ky. LEXIS 22 (Ky. 1975); Yocom v. Conley, 554 S.W.2d 416, 1977 Ky. App. LEXIS 768 (Ky. Ct. App. 1977); Rudd v. Kentucky Mfg. Co., 574 S.W.2d 928, 1978 Ky. App. LEXIS 641 (Ky. Ct. App. 1978); Yocom v. Miller, 594 S.W.2d 889, 1979 Ky. App. LEXIS 512 (Ky. Ct. App. 1979); Wells v. White, 648 S.W.2d 77, 1983 Ky. LEXIS 232 ( Ky. 1983 ); Farmers Rural Electric Cooperative Corp. v. Cooper, 715 S.W.2d 478, 1986 Ky. App. LEXIS 1209 (Ky. Ct. App. 1986); Mills v. Blake, 734 S.W.2d 494, 1987 Ky. App. LEXIS 515 (Ky. Ct. App. 1987); Commonwealth, Dep’t of Fin., Div. of Printing v. Drury, 846 S.W.2d 702, 1992 Ky. LEXIS 186 ( Ky. 1992 ); Derr Constr. Co. v. Bennett, 873 S.W.2d 824, 1994 Ky. LEXIS 45 ( Ky. 1994 ); Campbell v. Sextet Mining Co., 912 S.W.2d 25, 1995 Ky. LEXIS 111 ( Ky. 1995 ).

Opinions of Attorney General.

A fire fighter in the employ of a fire protection district is automatically covered under workers’ compensation; if the employee had an active prior disability at the time of his hiring by the fire district, then the fire district is only responsible for the degree of injury which results while in its employ and is not responsible for that part of the employee’s disability which is attributable to his prior injury, and the fire fighter cannot sue the district at common law for his job-related injury because of KRS 342.690 , unless the district fails to secure compensation insurance or be a self-insurer, or the fire fighter opts out of workers’ compensation under KRS 342.650(6) and rules of the Workers’ Compensation Board. OAG 80-370 .

Research References and Practice Aids

Kentucky Bench & Bar.

Schilling, A Portion Is Three . . . . . Towards an Evaluative Approach to Pre-Injury Disability, Vol. 42, No. 4, October, 1978, Ky. Bench & Bar 16.

Patterson, Legislative Changes in Workers’ Compensation; The Pendulum Swings, Vol. 46, No. 4, October 1982, Ky. Bench & Bar 30.

Cetrulo, “Reopening” Under the Kentucky Workers’ Compensation Act, Vol. 50, No. 1, Winter 1985-86 Ky. Bench & B. 28.

Harned, Workers’ Compensation — An Agenda for the Future, Vol. 50, No. 2, Spring 1986 Ky. Bench & B. 34.

Jones, Kentucky Workers’ Compensation — Disability or Social Security, Volume 52, No. 4, Fall 1988 Ky. Bench & B. 29.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

Jones, A Defense Perspective of the Kentucky Workers’ Compensation Reform Legislation (House Bill 928), Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 20.

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 64 Ky. L.J. 307 (1975-76).

Kentucky Law Survey, Basil, Workers’ Compensation, 69 Ky. L.J. 687 (1980-81).

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

Render, On Unpublished Opinions, 73 Ky. L.J. 145 (1984-85).

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Northern Kentucky Law Review.

Comments, Kentucky Workmen’s Compensation Benefits — Apportionment and Computation, 6 N. Ky. L. Rev. 91 (1979).

King, Workers’ Compensation Update 1992-1993, 21 N. Ky. L. Rev. 329 (1994).

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

342.1201. Findings and declarations relating to special fund assessments. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1987 (Ex. Sess.), ch. 1, § 12, effective October 26, 1987) was repealed by Acts 1996 (Ex. Sess.), ch. 1, § 83, effective December 12, 1996.

342.1202. Apportionment of award for income benefits for permanent disability based on pre-existing disease or pre-existing condition of the back or the heart — Limit on special fund’s liability for all other injury claims. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1987 (Ex. Sess.), ch. 1, § 10, effective October 26, 1987; 1990, ch. 3, § 1, effective July 13, 1990; 1994, ch. 181, Part 9, § 32, effective April 4, 1994) was repealed by Acts 1996 (Ex. Sess.), ch. 1, § 83, effective December 12, 1996.

342.121. Reference of medical questions in subsequent injury or occupational disease cases to physician — Report — Fees and expenses — Decision of administrative law judge. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 23, § 2; 1948, ch. 151, § 1; 1960, ch. 147, § 10; 1964, ch. 192, § 12; 1970, ch. 6, § 4; 1972, ch. 78, § 22; 1982, ch. 278, § 18, effective July 15, 1982; 1987 (Ex. Sess.), ch. 1, § 11, effective January 4, 1988) was repealed by Acts 1996 (1st Ex. Sess.), ch. 1, § 83, effective December 12, 1996.

342.122. Special fund assessments — Annual adjustments — Quarterly payments — Electronic remittance — Reports — Central claim registry.

    1. For calendar year 1997 and for each calendar year thereafter, for the purpose of funding and prefunding the liabilities of the special fund, financing the administration and operation of the Kentucky Workers’ Compensation Funding Commission, and financing the expenditures for all programs in the Labor Cabinet, except the Division of Wages and Hours in the Department of Workplace Standards, as reflected in the enacted budget of the Commonwealth and enacted by the General Assembly, the funding commission shall impose a special fund assessment rate of nine percent (9%) upon the amount of workers’ compensation premiums received on and after January 1, 1997, through December 31, 1997, by every insurance carrier writing workers’ compensation insurance in the Commonwealth, by every self-insured group operating under the provisions of KRS 342.350(4) and Chapter 304, and against the premium, as defined in KRS 342.0011 , of every employer carrying his or her own risk. (1) (a) For calendar year 1997 and for each calendar year thereafter, for the purpose of funding and prefunding the liabilities of the special fund, financing the administration and operation of the Kentucky Workers’ Compensation Funding Commission, and financing the expenditures for all programs in the Labor Cabinet, except the Division of Wages and Hours in the Department of Workplace Standards, as reflected in the enacted budget of the Commonwealth and enacted by the General Assembly, the funding commission shall impose a special fund assessment rate of nine percent (9%) upon the amount of workers’ compensation premiums received on and after January 1, 1997, through December 31, 1997, by every insurance carrier writing workers’ compensation insurance in the Commonwealth, by every self-insured group operating under the provisions of KRS 342.350(4) and Chapter 304, and against the premium, as defined in KRS 342.0011 , of every employer carrying his or her own risk.
    2. The funding commission shall, for calendar year 1998 and thereafter, establish for the special fund an assessment rate to be assessed against all premium received during that calendar year which shall produce enough revenue to amortize on a level basis the unfunded liability of the special fund as of June 30 preceding January 1 of each year, for the period remaining until December 31, 2029. The interest rate to be used in this calculation shall reflect the funding commission’s investment experience to date and the current investment policies of the commission. This assessment shall be imposed upon the amount of workers’ compensation premiums received by every insurance carrier writing workers’ compensation insurance in the Commonwealth, by every self-insured group operating under the provisions of KRS 342.350(4) and Chapter 304, and against the premium, as defined in KRS 342.0011, of every employer carrying its own risk. On or before October 1 of each year, the commission shall notify each insurance carrier writing workers’ compensation insurance in the Commonwealth, every group of self- insured employers, and each employer carrying its own risk, of the rates which shall become effective on January 1 of each year, unless modified by the General Assembly.
    3. All assessments imposed by this section shall be paid to the Kentucky Workers’ Compensation Funding Commission and shall be credited to the benefit reserve fund within the Kentucky Workers’ Compensation Funding Commission.
    4. The assessments imposed in this chapter shall be in lieu of all other assessments or taxes on workers’ compensation premiums.
    1. These assessments shall be paid quarterly not later than the thirtieth day of the month following the end of the quarter in which the premium is received. Receipt shall be considered timely through actual physical receipt or by postmark of the United States Postal Service. Employers carrying their own risk and employers defined in KRS 342.630(2) shall pay the annual assessments in four (4) equal quarterly installments. (2) (a) These assessments shall be paid quarterly not later than the thirtieth day of the month following the end of the quarter in which the premium is received. Receipt shall be considered timely through actual physical receipt or by postmark of the United States Postal Service. Employers carrying their own risk and employers defined in KRS 342.630(2) shall pay the annual assessments in four (4) equal quarterly installments.
    2. Beginning on January 1, 2020, all assessments shall be electronically remitted to the funding commission quarterly not later than the thirtieth day of the month following the end of the quarter in which the premium is received. Receipt shall be considered timely when filed and remitted using the appropriate electronic pay system as prescribed by the funding commission. Employers carrying their own risk and employers defined in KRS 342.630(2) shall pay the annual assessments in four (4) equal quarterly installments.
  1. The assessments imposed by this section may be collected by the insurance carrier from the insured. However, the insurance carrier shall not collect from the employer any amount exceeding the assessments imposed pursuant to this section. If the insurance carrier collects the assessment from an insured, the assessment shall be collected at the same time and in the same proportion as the premium is collected. The assessment for an insurance policy or other evidence of coverage providing a deductible may be collected in accordance with this chapter on a premium amount that equates to the premium that would have applied without the deductible. Each statement from an insurance carrier presented to an insured reflecting premium and assessment amounts shall clearly identify and distinguish the amount to be paid for premium and the amount to be paid for assessments. No insurance carrier shall collect from an insured an amount in excess of the assessment percentages imposed by this chapter. The assessment for an insurance policy or other evidence of coverage providing a deductible may be collected in accordance with this chapter on a premium amount that equates to the premium that would have applied without the deductible. The percentages imposed by this chapter for an insurance policy issued by an insurance company shall be those percentages in effect on the annual effective date of the policy, regardless of the date that the premium is actually received by the insurance company.
  2. A self-insured group may elect to report its premiums and to have its assessments computed in the same manner as insurance companies. This election may not be rescinded for at least ten (10) years, nor may this election be made a second time for at least another ten (10) years, except that the board of directors of the funding commission may, at its discretion, waive the ten (10) year ban on a case-by-case basis after formal petition has been made to the funding commission by a self-insured group.
  3. The funding commission, as part of the collection and auditing of the special fund assessments required by this section, shall annually require each insurance carrier and each self-insured group to provide a list of employers which it has insured or which are members and the amount collected from each employer. Additionally, the funding commission shall require each entity paying a special fund assessment to report the SIC code for each employer and the amount of premium collected from each SIC code. An insurance carrier or self-insured group may require its insureds or members to furnish the SIC code for each of their employees. However, the failure of any employer to furnish said codes shall not relieve the insurance carrier or self-insured group from the obligation to furnish same to the funding commission. The Department of Workforce Investment, Education and Workforce Development Cabinet, is hereby directed to make available the SIC codes assigned in its records to specific employers to aid in the reporting and recording of the special fund assessment data.
  4. Each self-insured employer, self-insured group, or insurance carrier shall provide any information and submit any reports the Department of Revenue or the funding commission may require to effectuate the provisions of this section. In addition, the funding commission may enter reciprocal agreements with other governmental agencies for the exchange of information necessary to effectuate the provisions of this section.
  5. The special fund shall be required to maintain a central claim registry of all claims to which it is named a party, giving each such claim a unique claim number and thereafter recording the status of each claim on a current basis. The registry shall be established by January 26, 1988, for all claims on which payments were made since July 1, 1986, or which were pending adjudication since July 1, 1986, by audit of all claim files in the possession of the special fund.
  6. The fund heretofore designated as the subsequent claim fund is abolished, and there is substituted therefor the special fund as set out by this section, and all moneys and properties owned by the subsequent claim fund are transferred to the special fund.
  7. Notwithstanding any other provisions of this section or this chapter to the contrary, the total amount of funds collected pursuant to the assessment rates adopted by the funding commission shall not be limited to the provisions of this section.
  8. All assessment rates imposed for periods prior to January 1, 1997, under KRS 342.122 shall forever remain applicable to premiums received on policies with effective dates prior to January 1, 1997, by every insurance carrier writing workers’ compensation insurance in the Commonwealth, by every self-insured group operating under the provision of KRS 342.350(4) and Chapter 304, and against the premium, as defined in KRS 342.0011 , of every employer carrying its own risk.

HISTORY: Enact. Acts 1946, ch. 23, § 4 to 7; 1960, ch. 147, § 11; 1962, ch. 276, § 2; 1964, ch. 192, § 13; 1972, ch. 78, § 23; 1974, ch. 65, § 1; 1974, ch. 74, Art. II, § 9(1); 1976 (Ex. Sess.), ch. 26, § 3, effective January 1, 1977; 1978, ch. 256, § 2, effective June 17, 1978; 1982, ch. 278, § 19, effective July 15, 1982; 1984, ch. 414, § 35, effective July 13, 1984; 1987 (Ex. Sess.), ch. 1, § 13, effective October 26, 1987; 1988, ch. 297, § 1, effective July 15, 1988; 1990, ch. 33, § 2, effective March 7, 1990; 1994, ch. 181, Part 10, § 33, effective April 4, 1994; 1996, ch. 271, § 23, effective July 15, 1996; 1996 (1st Ex. Sess.), ch. 1, § 4, effective December 12, 1996; 1998, ch. 579, § 7, effective July 15, 1998; 2002, ch. 215, § 1, effective July 15, 2002; 2005, ch. 7, § 37, effective March 1, 2005; 2005, ch. 85, § 681, effective June 20, 2005; 2006, ch. 124, § 1, effective April 4, 2006; 2006, ch. 211, § 157, effective July 12, 2006; 2009, ch. 11, § 80, effective June 25, 2009; 2010, ch. 24, § 1787, effective July 15, 2010; 2010, ch. 58, § 1, effective July 15, 2010; 2012, ch. 110, § 12, effective April 11, 2012; 2017 ch. 82, § 6, effective June 29, 2017; 2017 ch. 134, § 7, effective June 29, 2017; 2018 ch. 54, § 2, effective July 14, 2018; 2019 ch. 146, § 71, effective June 27, 2019; 2019 ch. 173, § 5, effective June 27, 2019.

Compiler’s Notes.

Section 20 of Acts 1980, ch. 104, read: “On July 15, 1980, any unfunded liability in the coal workers’ pneumoconiosis fund shall be assumed by the special fund.”
Section 2 of Acts 1988, ch. 297 provided that the provisions of the act should apply to all policies written or renewed after July 15, 1988.
Section 103 of Acts 1994, ch. 181 provided that the 1994 amendment to subsection (5) of this section relating “to special fund assessments on deductible insurance policies or other evidences of coverage providing a deductible shall be effective retroactively for policies or other evidences of coverage in effect on or after January 1, 1994.”

The section appears to incorporate a correction from the Reviser of Statutes in (1)(a).

Legislative Research Commission Notes.

(6/27/2019). This statute was amended by 2019 Ky. Acts chs. 146 and 173, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

  1. Construction.
  2. Apportioning of Award.
  3. Current Manual Rates.
  4. Premiums.
1. Construction.

Transfers of millions of dollars from a workers’ compensation special fund to the general fund and to a mining budget were invalid transfers because public funds and private contributions were commingled, could not be differentiated, and could not be considered a valid suspension of the operation of a statute under Ky. Const. § 15 and Ky. Const. § 51, but the Kentucky Legislature could properly suspend an annual appropriation to the Kentucky Workers’ Compensation Funding Commission and the Workers’ Compensation Benefit Reserve Fund to the extent the funds had yet to be transferred to them. Beshear v. Haydon Bridge Co., 304 S.W.3d 682, 2010 Ky. LEXIS 8 ( Ky. 2010 ).

Guarantor was immune from being sued in a negligence case by the estates of deceased coal miners because it applied for and was granted status as a self-insurer; the guarantor was a carrier because it was a self-insurer authorized to insure the employees of its subsidiaries, and it met the regulatory and statutory requirements to gain approval for being a self-insurer. Even if the guarantor did not strictly meet the definition of a carrier or self-insurer, public policy still dictated that it be granted immunity. Falk v. Alliance Coal, LLC, 2013 Ky. App. LEXIS 127 (Ky. Ct. App. Aug. 16, 2013), aff'd, 461 S.W.3d 760, 2015 Ky. LEXIS 1630 ( Ky. 2015 ).

2. Apportioning of Award.

Where the claimant was determined to have a temporary total disability and was granted an open-end award and there was evidence of a preexisting condition which was aggravated by the injury, it was proper to apportion the award between the employer and the special fund. Cabe v. Lexington Laundry Co., 423 S.W.2d 909, 1968 Ky. LEXIS 499 ( Ky. 1968 ).

3. Current Manual Rates.

“Current manual rates” as used to define “adjusted cost,” the basis by which the maintenance-fund tax and the claim-fund tax are assessed against self-insured employers for workers’ compensation purposes, refers to the rates current during the calendar year covered by the report of adjusted costs, not the rates in effect contemporaneously with the report, as erroneously interpreted by the Department of Revenue. Beth-Elkhorn Corp. v. Ross, 552 S.W.2d 656, 1977 Ky. LEXIS 469 ( Ky. 1977 ).

4. Premiums.

The premiums collected by the Kentucky Reinsurance Association (KRA) are not state funds, but private funds; therefore since subsection (1) of KRS 41.070 and subdivision (31) (now (38)) of 446.010 are applicable only to state funds, the premiums collected by the KRA are not required to be deposited in the State Treasury; the method of operation is to collect premiums — in advance of liabilities — and to invest these funds, so that much of the liability can be met by investment income. Thompson v. Kentucky Reinsurance Asso., 710 S.W.2d 854, 1986 Ky. LEXIS 266 ( Ky. 1986 ).

Cited:

Pioneer Coal Co. v. Sparks, 249 S.W.2d 725, 1952 Ky. LEXIS 844 ( Ky. 1952 ); Combs v. Gaffney, 282 S.W.2d 817, 1955 Ky. LEXIS 260 ( Ky. 1955 ); Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Basil, Workers’ Compensation, 69 Ky. L.J. 687 (1980-81).

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

Northern Kentucky Law Review.

Comments, Kentucky Workmen’s Compensation Benefits — Apportionment and Computation, 6 N. Ky. L. Rev. 91 (1979).

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

342.1221. Penalty and interest on late payment of assessments and expenses — Waiver.

Assessments levied and expenses owed pursuant to KRS 342.122 , 342.1242 , and 342.1243 and unpaid on the date on which they are due and payable shall bear interest at the rate specified in KRS 131.183 plus a penalty of one and one-half percent (1.5%) per month or portion thereof without proration from the date on which the assessment or expenses are due and payable. The funding commission shall have the authority to waive part or all of the penalty, but not the interest, where it is shown to the satisfaction of the commission that failure to timely pay assessments is due to reasonable cause. This authority shall extend to the coal workers’ pneumoconiosis fund until it ceases to exist.

HISTORY: Enact. Acts 1987 (Ex. Sess.), ch. 1, § 14, effective October 26, 1987; 1994, ch. 181, Part 10, § 34, effective April 4, 1994; 2018 ch. 54, § 3, effective July 14, 2018.

342.1222. Refunds or credits on canceled or returned premiums.

  1. Every insurance carrier shall be entitled to a refund or credited with assessments paid on all canceled or returned premiums, including dividends paid or credited to policyholders, if the assessments are returned by the insurance carrier to the policyholder in addition to the canceled or returned premium.
  2. The assessments paid pursuant to the provisions of this chapter shall be refunded or credited in the manner provided in KRS 134.580 , provided that the claim for refund or credit, with respect to all claims filed on or after July 13, 1990, is made by the insurance carrier within four (4) years of the date the insurance carrier returns the assessments to the employer.
  3. A claim for refund or credit shall be made on a form prescribed by the funding commission and shall contain any information that the funding commission may require.
  4. No insurance carrier shall be entitled to a refund or credit of the assessments paid pursuant to the provisions of this chapter where the assessments have been collected from an employer as provided by KRS 342.122 , unless the amount of assessments collected from the employer are refunded to him by the insurance carrier who paid the assessments to the funding commission.

History. Enact. Acts 1987 (Ex. Sess.), ch. 1, § 15, effective October 26, 1987; 1990, ch. 33, § 3, effective July 13, 1990; 1994, ch. 181, Part 10, § 35, effective April 4, 1994.

Compiler’s Notes.

Section 103 of Acts 1994, ch. 181 provided that the 1994 amendment to this section relating “to refunds or credits for special fund assessments shall be effective retroactively to January 1, 1994.”

342.1223. Kentucky Workers’ Compensation Funding Commission — Commission’s relationship with Office of Financial Management within the Finance and Administration Cabinet.

  1. The Kentucky Workers’ Compensation Funding Commission is created as an agency of the Commonwealth for the public purpose of controlling, investing, and managing the funds collected pursuant to KRS 342.122 .
  2. The commission shall:
    1. Hold, administer, invest, and reinvest the funds collected pursuant to KRS 342.122 and its other funds separate and apart from all “state funds” or “public funds,” as defined in KRS Chapter 446;
    2. Act as a fiduciary, as defined in KRS Chapter 386, in exercising its power over the funds collected pursuant to KRS 342.122 , and may invest association funds through one (1) or more banks, trust companies, or other financial institutions with offices in Kentucky in good standing with the Department of Financial Institutions, in investments described in KRS Chapter 386, except that the funding commission may, at its discretion, invest in equity securities;
    3. Report to the General Assembly at each even-numbered-year regular session the actuarial soundness and adequacy of the funding mechanism for the special fund and other programs supported by the mechanism, including detailed information on the investment of funds and yields thereon;
    4. Recommend to the General Assembly, not later than October 31 of the year prior to each even-numbered-year regular legislative session, changes deemed necessary in the level of the assessments imposed in this chapter;
    5. In conjunction with the Labor Cabinet, submit to the General Assembly, not later than October 31 of the year prior to each even-numbered-year regular legislative session, a proposed budget for the biennium beginning July 1 following the even-numbered-year regular session of the General Assembly;
    6. In conjunction with the Labor Cabinet, provide to the Interim Joint Committee on Appropriations and Revenue an annual budget and detailed quarterly financial reports;
    7. Conduct periodic audits, independently or in cooperation with the Labor Cabinet or the Department of Revenue, of all entities subject to the assessments imposed in this chapter; and
    8. Report monthly to the Committees on Appropriations and Revenue and on Labor and Industry its monthly expenditures of restricted agency funds and the nature of the expenditures.
  3. The commission shall have all of the powers necessary or convenient to carry out and effectuate the purposes for which it was established, including, but not limited to, the power:
    1. To sue and be sued, complain, or defend, in its name;
    2. To elect, appoint, or hire officers, agents, and employees, and define their duties and fix their compensation within the limits of its budget approved by the General Assembly. Notwithstanding any provision of KRS Chapter 18A to the contrary, officers and employees of the funding commission may be exempted from the classified service;
    3. To contract for investment counseling, legal, actuarial, auditing, and other professional services in accordance with the provisions relating to personal service contracts contained in KRS Chapter 45A;
    4. To appoint, hire, and contract with banks, trust companies, and other entities to serve as depositories and custodians of its investment receipts and other funds;
    5. To take any and all other actions consistent with the purposes of the commission and the provisions of this chapter; and
    6. To make and promulgate administrative regulations.
  4. The Kentucky Workers’ Compensation Funding Commission may utilize the investment expertise and advice of the Office of Financial Management within the Finance and Administration Cabinet. The Kentucky Workers’ Compensation Funding Commission may procure one (1) or more consulting firms and enter into a personal service contract with such consulting firms to provide investment advisory, investment counseling, or investment management services. The Office of Financial Management shall participate in the selection of any firms for investment services provided, however, the Kentucky Workers’ Compensation Funding Commission shall have the right to make the final decision on the selection of any firms. Notwithstanding any provisions of this section to the contrary, all contracts for investment advisory, investment counseling, or investment management services or for the management of assets shall be subject to KRS Chapter 45A. The fees charged by financial institutions for managing the investments of the funds of the funding commission shall be paid from the investment earnings of the funds.
  5. The commission shall be attached to the Labor Cabinet for administrative purposes only.

HISTORY: Enact. Acts 1987 (Ex. Sess.), ch. 1, § 63, effective October 26, 1987; 1988, ch. 437, Pt. II, M, § 58, effective April 15, 1988; 1990, ch. 33, § 4, effective July 13, 1990; 1990, ch. 321, § 11, effective July 13, 1990; 1990, ch. 496, § 62, effective July 13, 1990; 1994, ch. 181, Part 2, § 6, effective April 4, 1994; 1994, ch. 201, § 1, effective July 15, 1994; 1996 (1st Ex. Sess.), ch. 1, § 5, effective December 12, 1996; 2000, ch. 46, § 29, effective July 14, 2000; 2001, ch. 58, § 25, effective June 21, 2001; 2005, ch. 85, § 682, effective June 20, 2005; 2010, ch. 24, § 1788, effective July 15, 2010; 2017 ch. 173, § 1, effective April 10, 2017; 2018 ch. 54, § 4, effective July 14, 2018.

NOTES TO DECISIONS

Cited:

Beshear v. Haydon Bridge Co., 304 S.W.3d 682, 2010 Ky. LEXIS 8 ( Ky. 2010 ).

Opinions of Attorney General.

The Office of Financial Management and Economic Analysis’ overnight investment of the Workers’ Compensation Funding Commission’s funds is impermissible under subdivision (2)(a) of this section. OAG 93-13 .

342.1224. Board of directors of funding commission.

  1. The commission shall be governed by a board of directors consisting of seven (7) members. The seven (7) members shall include the secretary of the Labor Cabinet or a designee, the secretary of the Cabinet for Economic Development or a designee, the secretary of the Finance and Administration Cabinet or a designee, and four (4) members who shall be appointed by the Governor.
  2. The four (4) appointed members shall include:
    1. One (1) member, selected from a list of three (3) submitted by the secretary of the Labor Cabinet, who shall represent labor;
    2. One (1) member, selected from a list of three (3) submitted by the secretary for economic development, who shall represent employers; provided, however, that these three (3) members shall represent employers who purchase workers’ compensation coverage for their employees from insurance companies writing workers’ compensation insurance in the Commonwealth;
    3. One (1) member, selected from a list of three (3) submitted by the insurance advisory organization having jurisdiction over Kentucky, who shall represent insurance companies writing workers’ compensation insurance in the Commonwealth; and
    4. One (1) member, selected from a list of three (3) submitted by the associations representing self-insured employers in the Commonwealth.
  3. The members of the board of directors shall serve a term of four (4) years, except that the initial terms of the members shall be staggered as follows:
    1. The initial member appointed by the Governor to represent labor shall serve a term of one (1) year. Thereafter, such member shall serve a term of four (4) years;
    2. The initial member appointed by the Governor to represent employers shall serve a term of two (2) years. Thereafter, such member shall serve a term of four (4) years;
    3. The initial member appointed by the Governor to represent insurance companies shall serve a term of four (4) years. Thereafter, such member shall serve a term of four (4) years; and
    4. The initial member appointed by the Governor to represent self-insured employers shall serve a term of three (3) years. Thereafter, such member shall serve a term of four (4) years.
  4. The board of directors shall annually elect from among its members a chairman, a vice chairman, and a secretary-treasurer. The board of directors may also elect or appoint, and prescribe the duties of, other officers as the board of directors deems necessary or advisable.
  5. The board of directors shall appoint an executive director to administer, manage, and direct the affairs and business of the commission, and other staff persons to carry out the affairs and business of the commission, subject in each instance to the policies, control, and directions of the board of directors. The board of directors shall fix the compensation of all such persons and shall pay such compensation out of the funds of the commission.
  6. Notwithstanding any other law, the Governor, pursuant to an executive order, may cause the employees of the commission to be eligible to participate in the Kentucky Retirement System and the Kentucky Public Employees Deferred Compensation System.
  7. A majority of the board of directors of the commission shall constitute a quorum for the purposes of conducting its business and exercising its powers and for all other purposes. The majority shall be determined by excluding any existing vacancies from the total number of directors.
  8. The board of directors of the Kentucky Workers’ Compensation Funding Commission are hereby determined to be officers and agents of the Commonwealth of Kentucky and, as such, shall enjoy the same immunities from suit for the performance of their official acts as do other officers of the Commonwealth of Kentucky.

History. Enact. Acts 1987 (Ex. Sess.), ch. 1, § 64, effective October 26, 1987; 1988, ch. 437, Pt. II, M, § 58, effective April 15, 1988; 2004, ch. 105, § 20, effective July 13, 2004; 2005, ch. 85, § 683, effective June 20, 2005; 2006, ch. 124, § 3, effective April 4, 2006; 2010, ch. 24, § 1789, effective July 15, 2010.

Legislative Research Commission Notes.

(1987) Although the number of members of the funding commission was reduced from 17 to 7 by House Floor Amendment, due to a clerical error, the number of members for whom staggered terms of office were provided was not reduced. The Reviser of Statutes, pursuant to KRS 7.136 , has made changes to reflect this reduction.

342.1225. Annual audit of commission’s financial statements.

The board of directors shall require the commission to engage a certified public accountant or a firm of certified public accountants to conduct an annual examination of the commission’s financial statements, conditions, transactions, and affairs in accordance with generally accepted auditing standards for the purpose of submitting an independent opinion, and preparing a report of findings and recommendations concerning the commission’s internal accounting controls and procedures. The opinions and reports of the accountants shall be forwarded annually to the Governor and Auditor of Public Accounts. Notwithstanding any other provision of this chapter, the Auditor of Public Accounts shall have access to and may examine all books, accounts, reports, vouchers, correspondence files, records, money, and property of the commission and may otherwise exercise all powers of his office under KRS Chapter 43 with respect to the association.

History. Enact. Acts 1987 (Ex. Sess.), ch. 1, § 67, effective October 26, 1987.

342.1226. Special fund and funding commission to share books, records, documents and information.

The special fund and the funding commission shall at all times furnish each other access to any and all books, records, documents, and information necessary or desirable in order to allow the other to perform its duties under this chapter.

History. Enact. Acts 1987 (Ex. Sess.), ch. 1, § 68, effective October 26, 1987.

342.1227. Loan or transfer of funds of funding commission prohibited.

Except as provided in KRS 342.829 , funds which are under the jurisdiction of the commission shall not:

  1. Be loaned to the Commonwealth or any instrumentality or agency thereof;
  2. Be subject to transfer to the Commonwealth or any agency or instrumentality thereof, except for purposes specifically authorized by this chapter;
  3. Be expended for any other purpose than one authorized by this chapter.

History. Enact. Acts 1987 (Ex. Sess.), ch. 1, § 66, effective October 26, 1987; 1994, ch. 181, Part 15, § 97, effective April 4, 1994.

NOTES TO DECISIONS

1. Construction.

Transfers of millions of dollars from a workers’ compensation special fund to the general fund and to a mining budget were invalid transfers because public funds and private contributions were commingled, could not be differentiated, and could not be considered a valid suspension of the operation of a statute under Ky. Const. § 15 and Ky. Const. § 51, but the Kentucky Legislature could properly suspend an annual appropriation to the Kentucky Workers’ Compensation Funding Commission and the Workers’ Compensation Benefit Reserve Fund to the extent the funds had yet to be transferred to them. Beshear v. Haydon Bridge Co., 304 S.W.3d 682, 2010 Ky. LEXIS 8 ( Ky. 2010 ).

Opinions of Attorney General.

The Office of Financial Management and Economic Analysis’ (OFMEA) lending of the Workers’ Compensation Funding Commission’s securities constituted a violation of this section based on the statutory authority for OFMEA to invest funds in repurchase agreements combined with the separate accounting and full collateralization of the Commission funds. OAG 93-13 .

342.1228. Funding commission exempt from reorganization powers of Governor.

The Kentucky Workers’ Compensation Funding Commission shall not be subject to the Governor’s power of reorganization under KRS Chapter 12, including attachment or transfer to another organizational unit or administrative body other than the Labor Cabinet. The Governor may, however, recommend changes in the organization of the commission to the General Assembly at any regular or special session of the General Assembly.

History. Enact. Acts 1987 (Ex. Sess.), ch. 1, § 65, effective October 26, 1987; 1994, ch. 181, Part 2, § 5, effective April 4, 1994; 2010, ch. 24, § 1790, effective July 15, 2010.

NOTES TO DECISIONS

Cited in:

Commonwealth ex rel. Beshear v. Bevin, 575 S.W.3d 673, 2019 Ky. LEXIS 214 ( Ky. 2019 ); Commonwealth ex rel. Beshear v. Bevin, 575 S.W.3d 673, 2019 Ky. LEXIS 214 ( Ky. 2019 ).

342.1229. Benefit reserve fund.

The benefit reserve fund is hereby established within the funding commission, and shall be administered by the funding commission. All funds in excess of current liabilities of the special fund and budgeted expenditures shall be deposited in the benefit reserve fund and invested in compliance with the investment policies formulated by the funding commission.

History. Enact. Acts 1987 (Ex. Sess.), ch. 1, § 69, effective October 26, 1987.

NOTES TO DECISIONS

Cited:

Beshear v. Haydon Bridge Co., 304 S.W.3d 682, 2010 Ky. LEXIS 8 ( Ky. 2010 ).

342.123. Creation of Kentucky reinsurance association — Board of directors — Payment of premiums and assessments by subscribers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 278, § 16, effective July 15, 1982) was repealed by Acts 1987 (Ex. Sess.), ch. 1, § 72(1), effective December 29, 1987.

342.1231. Payment for assessment, penalty and interest, and expenses — Procedure for protesting special fund assessments — Expenses of audits, how paid — Mailing of assessment notice — Documents relevant to reports and audits — Notice and payment of refund — Penalty for late payment.

  1. The funding commission may mail to the assessment payer a notice of any assessment assessed by it. The assessment shall be final if not protested in writing to the funding commission within thirty (30) days from the date of notice. Payment for the assessment, penalty and interest, and expenses shall be received by the funding commission within thirty (30) days from the date the notice becomes final. The protest shall be accompanied by a supporting statement setting forth the grounds upon which the protest is made. Upon written request, the funding commission may extend the time for filing the supporting statement if it appears the delay is necessary and unavoidable. The refusal of such extension may be reviewed in the same manner as a protested assessment.
  2. After a timely protest has been filed, the assessment payer may request a conference with the funding commission. The request shall be granted in writing stating the date and time set for the conference. The assessment payer may appear in person or by representative. Further conferences may be held by mutual agreement.
  3. After considering the assessment payer’s protest, including any matters presented at the final conference, the funding commission shall issue a final ruling on any matter still in controversy, which shall be mailed to the assessment payer. The ruling shall state that it is a final ruling of the funding commission, generally state the issues in controversy, the funding commission’s position thereon and set forth the procedure for prosecuting an appeal to the Kentucky Claims Commission pursuant to KRS 49.220 .
  4. The assessment payer may request in writing a final ruling at any time after filing a timely protest and supporting statement. When a final ruling is requested, the funding commission shall issue such ruling within sixty (60) days or at the next board of directors meeting, whichever is later, from the date the request is received by the funding commission.
  5. After a final ruling has been issued, the assessment payer may appeal to the Kentucky Claims Commission pursuant to KRS 49.220 .
  6. The expenses incurred by the funding commission in conducting audits required in this chapter shall be paid by the audited entities in accordance with administrative regulations promulgated by the funding commission.
  7. Notwithstanding any provision to the contrary, a notice of assessment under subsection (1) of this section shall not be collected unless the notice of assessment is mailed to the assessment payer not later than five (5) years from the due date of the quarterly premium report or the date the amended quarterly premium report is filed, whichever is later. A quarterly premium report shall not be amended later than one (1) year after the due date of the quarterly premium report.
  8. Assessment payers shall preserve, retain, and provide all documents relevant to quarterly premium reports and subject to audits to the funding commission upon request during the completion of the audit.
    1. The funding commission may mail the assessment payer notice of a refund amount to be returned to an insured. The insurance carrier shall pay the amount of the refund to the insured within sixty (60) days from the date of notice sent by the funding commission. If, after good faith efforts, the refund cannot be returned to the insured, the refund amount shall be remitted to the funding commission within thirty (30) days from the last date of attempting the refund. (9) (a) The funding commission may mail the assessment payer notice of a refund amount to be returned to an insured. The insurance carrier shall pay the amount of the refund to the insured within sixty (60) days from the date of notice sent by the funding commission. If, after good faith efforts, the refund cannot be returned to the insured, the refund amount shall be remitted to the funding commission within thirty (30) days from the last date of attempting the refund.
    2. If a refund amount to an insured is unpaid on the date on which it is due, then that amount shall bear a penalty of one and one-half percent (1.5%) per month from that due date. The funding commission shall have the authority to waive part or all of the penalty where failure to pay is shown, to the satisfaction of the funding commission, to be for a reasonable cause.
  9. “Assessment payer” as used in this section means insurance carrier, self-insured group, and self-insured employer.

HISTORY: Enact. Acts 1990, ch. 33, § 5, effective July 13, 1990; 2005, ch. 7, § 38, effective March 1, 2005; 2017 ch. 74, § 100, effective June 29, 2017; 2018 ch. 54, § 5, effective July 14, 2018.

342.1232. Use of administrative savings from 1996 (1st Extra. Sess.) Ky. Acts ch. 1.

Subsequent administrative savings as a result of the implementation of 1996 (1st Extra. Sess.) Ky. Acts ch. 1 shall be used to defray the special fund assessment on all employers in the Commonwealth.

History. Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 85, effective December 12, 1996.

342.124. Transfer of liabilities, funds, records and property to workers’ compensation funding commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1987 (Ex. Sess.), ch. 1, § 74, effective October 26, 1987) was repealed by Acts 1990, ch. 33, § 8, effective March 7, 1990.

342.1240. Legislative findings and declaration of intent regarding the Kentucky coal workers’ pneumoconiosis fund.

  1. The General Assembly declares:
    1. The Kentucky coal workers’ pneumoconiosis fund was created in 1996 for the purpose of placing the financial responsibility for liabilities incurred as a result of workers’ compensation awards for coal workers’ pneumoconiosis on the employers engaged in the severance and processing of coal through assessments placed on workers’ compensation premiums and self-insured employers and severed coal. These assessments have been used to pay fifty percent (50%) of indemnity benefits of a coal workers’ pneumoconiosis claim. However, the combination of the severe downturn in the amount of coal being severed in Kentucky, the drastic reduction in the number of coal employers and employees, and the significant increase in coal workers’ pneumoconiosis claims being filed have had a severe negative impact on the Kentucky coal workers’ pneumoconiosis fund.
    2. For calendar year 2017, the Kentucky Workers’ Funding Commission, which is required to assess all employers engaged in the severance and processing of coal at a rate that would fully fund and prefund all claim liabilities and administrative expenses through December 31 of the following year, assessed coal employers forty-nine and one-half percent (49.5%) on employers’ workers’ compensation insurance premiums and assessed forty-one and seventy-four hundredths cents ($0.4174) per ton of severed coal.
    3. The Kentucky coal workers’ pneumoconiosis fund will not have adequate funding without burdensome assessments on coal employers in order to meet claim liabilities and administrative expenses in the upcoming years.
  2. Therefore, it is the intent of the General Assembly to close the Kentucky coal workers’ pneumoconiosis fund on July 1, 2017, to any coal workers’ pneumoconiosis claims filed after June 30, 2017, and have the assets and liabilities of the Kentucky coal workers’ pneumoconiosis fund transferred through a loss portfolio transfer agreement to the Kentucky Employers’ Mutual Insurance Authority, which is a nonprofit, independent, self-supporting de jure municipal corporation and political subdivision of the Commonwealth.

HISTORY: 2017 ch. 173, § 2, effective April 10, 2017.

342.1241. Legislative findings and declarations on Kentucky coal workers’ pneumoconiosis fund. [Repealed]

History. Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 75, effective December 12, 1996; 2002, ch. 246, § 7, effective July 15, 2002; repealed by 2017 ch. 173, § 11, effective April 10, 2017.

Compiler’s Notes.

This section (Enact. Acts 1996 (1st Extra Sess.), ch. 1, § 75, effective December 12, 1996; 2002, ch. 246, § 7, effective July 15, 2002) was repealed by Acts 2017, ch. 173, § 11, effective April 10, 2017.

342.1242. Kentucky coal workers’ pneumoconiosis fund — Liability for and manner of making payments for awards for coal workers’ pneumoconiosis — Assessments to finance fund — When assessments cease — Distribution of excess assessments to employers — Reimbursement of funding commission by Kentucky Employers’ Mutual Insurance Authority.

  1. There is created the Kentucky coal workers’ pneumoconiosis fund which shall have one-half (1/2) of the liability for income benefits, including retraining benefits, payable for claims brought under KRS 342.732 for last exposure incurred on or after December 12, 1996, which are filed on or before June 30, 2017. Income benefit payments by the Kentucky coal workers’ pneumoconiosis fund shall be made contemporaneous with the payments made by the employer, except that the employer shall make all payments due under a final award or approved settlement for any claims filed after June 30, 2017.
  2. For claims brought under KRS 342.732 for last exposure incurred on or after December 12, 1996 which are filed on or before June 30, 2017, the employer shall defend any claim brought under KRS 342.732 and upon conclusion shall seek participation in payment of the final award or settlement by the Kentucky coal workers’ pneumoconiosis fund by making written request upon the director in the manner prescribed by administrative regulation to be promulgated by the commissioner of the Department of Workers’ Claims.
    1. For the purpose of funding the liabilities of the Kentucky coal workers’ pneumoconiosis fund and financing the administration and operation of the Kentucky coal workers’ pneumoconiosis fund, as reflected in the budget of the Commonwealth enacted by the General Assembly, a Kentucky coal workers’ pneumoconiosis fund assessment at the rate of three percent (3%) is hereby imposed upon the amount of workers’ compensation premiums received on and after January 1, 1997, through December 31, 1997, by every insurance carrier writing workers’ compensation insurance in the Commonwealth and by every self-insured group operating under the provisions of KRS 342.350(4) and Chapter 304, from employers engaged in the severance or processing of coal. Likewise, on and after January 1, 1997, through December 31, 1997, an assessment at the rate of three percent (3%) of premium shall be paid by every employer engaged in the severance or processing of coal who is carrying his or her own risk. (3) (a) For the purpose of funding the liabilities of the Kentucky coal workers’ pneumoconiosis fund and financing the administration and operation of the Kentucky coal workers’ pneumoconiosis fund, as reflected in the budget of the Commonwealth enacted by the General Assembly, a Kentucky coal workers’ pneumoconiosis fund assessment at the rate of three percent (3%) is hereby imposed upon the amount of workers’ compensation premiums received on and after January 1, 1997, through December 31, 1997, by every insurance carrier writing workers’ compensation insurance in the Commonwealth and by every self-insured group operating under the provisions of KRS 342.350(4) and Chapter 304, from employers engaged in the severance or processing of coal. Likewise, on and after January 1, 1997, through December 31, 1997, an assessment at the rate of three percent (3%) of premium shall be paid by every employer engaged in the severance or processing of coal who is carrying his or her own risk.
    2. In addition to the assessment imposed in paragraph (a) of this subsection, an additional Kentucky coal workers’ pneumoconiosis fund assessment at the rate of two and one-half cents ($0.025) per ton is hereby imposed upon the total annual amount of tons of coal severed on or after January 1, 1997, through December 31, 1997, by every entity engaged in the severance of coal as required pursuant to KRS Chapter 143.
    3. As of June 30, 2018, and each year thereafter until the liabilities of the fund are fully funded, the Funding Commission and the Kentucky Employers’ Mutual Insurance Authority shall determine the assets of the fund and the claim liability incurred by the fund for all previous years and shall establish the rates under the provisions of paragraphs (a) and (b) of this subsection necessary as of January 1 of the next year to fund claim liabilities through December 31 of the next year of operations. The assessment rate authorized by this section for premiums received and tons of coal severed shall be set so as to receive fifty percent (50%) of the needed revenue from each assessment. Notice of any rate changes shall be provided no later than October 1 of the year preceding the rate change.
  3. All assessments imposed by this section shall be paid to the Kentucky Workers’ Compensation Funding Commission and shall be transferred to the Kentucky Employers’ Mutual Insurance Authority, which is administering the coal workers’ pneumoconiosis fund. In addition, the powers and responsibilities of the Kentucky Workers’ Compensation Funding Commission including its fiduciary duties and responsibilities relating to assessments collected for the special fund pursuant to KRS 342.122 , 342.1221 , 342.1222 , 342.1223 , 342.1226 , 342.122 9, and 342.1231 shall apply to assessments collected for the Kentucky coal workers’ pneumoconiosis fund created pursuant to this section. Each entity subject to assessments for the Kentucky coal workers’ pneumoconiosis fund shall provide any and all information requested by the Kentucky Workers’ Compensation Funding Commission necessary to carry out its powers and responsibilities relating thereto.
  4. These assessments shall be paid quarterly not later than the thirtieth day of the month following the end of the quarter in which the premium is received or the coal is processed or severed. Receipt shall be considered timely through actual physical receipt or by postmark by the United States Postal Service. Employers carrying their own risk and employers defined in KRS 342.630(2) shall pay the annual assessments in four (4) equal quarterly installments. Penalty and interest penalties imposed pursuant to KRS 342.1221 and the authority of the Kentucky Workers’ Compensation Funding Commission to waive part or all of the penalty shall apply to assessments for the Kentucky coal workers’ pneumoconiosis fund in the same manner and amount as they are imposed on assessments for the special fund under KRS 342.122 .
  5. Notwithstanding any other provisions of this section or this chapter to the contrary, the total amount of funds collected pursuant to the assessment rates adopted by the funding commission shall not be limited to the provisions of this section.
  6. Claims for benefits by reason of the development of coal workers’ pneumoconiosis shall be maintained pursuant to KRS 342.732 , and the Kentucky coal workers’ pneumoconiosis fund shall be liable for payment of a part of the liability only for employees of employers engaged in the severance or processing of coal as defined in KRS 342.0011(23)(a) and (b).
    1. Assessments issued pursuant to this section shall cease to be imposed once the liabilities of the fund are fully funded. After the liabilities are fully funded, any excess assessments shall be refunded to the employers on a pro rata basis as determined from the cumulative amounts of assessments received from workers’ compensation premiums paid by employers, whether insured, self-insured, or carrying their own risk, on or after January 1, 2017. (8) (a) Assessments issued pursuant to this section shall cease to be imposed once the liabilities of the fund are fully funded. After the liabilities are fully funded, any excess assessments shall be refunded to the employers on a pro rata basis as determined from the cumulative amounts of assessments received from workers’ compensation premiums paid by employers, whether insured, self-insured, or carrying their own risk, on or after January 1, 2017.
    2. The Kentucky Employers’ Mutual Insurance Authority shall disburse, on a pro rata basis, the excess assessments to each employer which is engaged in the severance or processing of coal and which is in good standing with the Secretary of State and authorized to do business in the Commonwealth as evidenced by a certificate of existence, certificate of authorization, or other such certificate issued by the Secretary of State their pro rata shares of excess assessments.
    3. Upon a determination by the Kentucky Workers’ Compensation Funding Commission and the Kentucky Employers’ Mutual Insurance Authority that final audits are closed and the liabilities of the fund are fully funded, the Kentucky Employers’ Mutual Insurance Authority shall send a notice to each employer via first-class United States mail advising each employer that in order to assert a claim to the employer’s pro rata share of any excess assessments the employer must submit a certification under oath to the Kentucky Employers’ Mutual Insurance Authority stating that the employer is engaged in the severance or processing of coal in the Commonwealth and that the employer is in good standing with the Secretary of State and authorized to do business in the Commonwealth. The employer shall also certify whether or not it has applied for an adjudication of bankruptcy, reorganization, arrangement, or other relief under the United States Bankruptcy Code.
    4. The employer shall submit to the Kentucky Employers’ Mutual Insurance Authority the employer’s certificate obtained from the Secretary of State along with the certification under oath specified in this subsection.
    5. The Kentucky Employers’ Mutual Insurance Authority shall specify in the notice the date of mailing of the notice to the employer and shall send the notice to the employer at the address of the statutory agent designated by the employer with the Secretary of State or, if the employer has not designated a statutory agent with the Secretary of State, at the address of the employer on file with the Kentucky Employers’ Mutual Insurance Authority or, if the address of the employer is not on file with the Kentucky Employers’ Mutual Insurance Authority, at the address of the employer on file with the Kentucky Workers’ Compensation Funding Commission.
    6. The employer’s certification must be received by the Kentucky Employers’ Mutual Insurance Authority within thirty (30) days of mailing of the notice from the Kentucky Employers’ Mutual Insurance Authority to the employer.
    7. Within thirty (30) days of receipt of a timely submitted certification from an employer, the Kentucky Employers’ Mutual Insurance Authority shall distribute to the employer the employer’s pro rata share of the excess funds. If the employer is in bankruptcy at the time the certification is provided to the Kentucky Employers’ Mutual Insurance Authority, any funds that would be distributed to the employer shall only be distributed to former employees to whom past due wages are owed, subject to the approval of the bankruptcy judge. If an employer has an outstanding balance due for taxes or other obligations to the Commonwealth, for a bond payment, or to a county, city, school system or school district, fire district, or any special taxing authority, no funds shall be distributed to the employer unless those outstanding balances have been paid in full at the time of the distribution of the funds by Kentucky Employers’ Mutual Insurance Authority.
    8. If, at any time after the Kentucky Employers’ Mutual Insurance Authority’s distribution of funds to an employer, it is determined that the certification submitted by the employer to the Kentucky Employers’ Mutual Insurance Authority was materially false at the time of the certification, the Attorney General is authorized to file an action against the employer to recover the funds distributed to the employer by the Kentucky Employers’ Mutual Insurance Authority along with interest at the rate of twelve percent (12%) from the date of distribution of the funds to the employer and a penalty of ten percent (10%) of the amount of the funds distributed to the employer, plus reasonable attorney’s fees, litigation expenses, and court costs.
    9. For those employers who do not timely submit a certification to the Kentucky Employers’ Mutual Insurance Authority as specified in this subsection, their pro rata shares shall be transferred to the Kentucky coal employers self-insurance guaranty fund for the purpose of paying workers’ compensation benefits to employees of insolvent self-insured employers engaged in the severance and processing of coal, and those employers’ claims to a distribution of funds pursuant to this subsection shall be forever barred.
    10. The Kentucky Workers’ Compensation Funding Commission shall provide all available information regarding the employers to the Kentucky Employers’ Mutual Insurance Authority upon the request of the Kentucky Employers’ Mutual Insurance Authority.
  7. The Kentucky Employers’ Mutual Insurance Authority shall reimburse the funding commission for any expenses incurred with regard to the collection of assessments for the coal workers’ pneumoconiosis fund and other incurred expenses related to the coal workers’ pneumoconiosis fund.

History. Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 34, effective December 12, 1996; 2002, ch. 246, § 2, effective July 15, 2002; 2005, ch. 7, § 39, effective March 1, 2005; 2006, ch. 124, § 2, effective April 4, 2006; 2010, ch. 24, § 1791, effective July 15, 2010; 2017 ch. 173, § 4, effective April 10, 2017; 2018 ch. 54, § 6, effective July 14, 2018; 2020 ch. 122, § 1, effective July 15, 2020.

NOTES TO DECISIONS

1. Standing.

Employers had no standing to contest a transfer of funds from the Pneumoconiosis Fund (Fund) to the general fund because the employers (1) were not involved in the coal industry, and (2) never contributed to the Fund. Beshear v. Haydon Bridge Co., 416 S.W.3d 280, 2013 Ky. LEXIS 582 ( Ky. 2013 ).

Research References and Practice Aids

2010-2012 Budget Reference.

See State/Executive Branch Budget, 2010 (1st Extra. Sess.) Ky. Acts ch. 1, Pt. I, I, 6, (2) at 48.

342.1243. Transfer of the administration, assets, and liabilities of the Kentucky coal workers’ pneumoconiosis fund — Assessments on employers — Abolition of fund.

  1. Notwithstanding any provisions of this chapter or any other provisions to the contrary, the Kentucky coal workers’ pneumoconiosis fund shall have no liability for income benefits for coal workers’ pneumoconiosis claims filed or reopened on or after July 1, 2017.
  2. Notwithstanding any provisions of this chapter or any other provisions to the contrary, as soon as practically possible after July 1, 2017, all of the assets and liabilities of the Kentucky coal workers’ pneumoconiosis fund shall be transferred from the Kentucky Workers’ Compensation Funding Commission and Division of Workers’ Compensation Funds to the Kentucky Employers’ Mutual Insurance Authority through a loss portfolio transfer agreement. The Kentucky Employers’ Mutual Insurance Authority shall have full authority and responsibility over the Kentucky coal workers’ pneumoconiosis fund’s claims and shall administer the claims as permitted pursuant to KRS Chapter 342.
  3. Notwithstanding the provisions of KRS 342.1242 , the Workers’ Compensation Funding Commission shall impose an assessment at an annual rate of fourteen percent (14%) upon the amount of workers’ compensation premiums received on or after January 1, 2017, through December 31, 2017, by every insurance carrier writing workers’ compensation insurance in the Commonwealth and by every self-insured group operating under the provisions of KRS 342.350(4) and KRS Chapter 304, from employers engaged in the severance or processing of coal. Likewise, on or after January 1, 2017, through December 31, 2017, an assessment at the rate of fourteen percent (14%) of premium shall be paid by every employer engaged in the severance or processing of coal who is carrying his or her own risk.
  4. Notwithstanding the provisions of KRS 342.1242 , the Workers’ Compensation Funding Commission shall impose an assessment at an annual rate of fourteen percent (14%) upon the amount of workers’ compensation premiums received on or after January 1, 2018, through December 31, 2018, by every insurance carrier writing workers’ compensation insurance in the Commonwealth and by every self-insured group operating under the provisions of KRS 342.350(4) and Chapter 304, from employers engaged in the severance or processing of coal. Likewise, on or after January 1, 2018, through December 31, 2018, an assessment at the rate of fourteen percent (14%) of premium shall be paid by every employer engaged in the severance or processing of coal who is carrying his or her own risk.
  5. Notwithstanding the provisions of KRS 342.1242 , in addition to the assessments in subsection (3) and (4) of this section, for the calendar years of 2017 and 2018, an assessment at the rate of fifteen cents ($0.15) per ton shall be imposed upon the total annual amount of tons of coal severed by every entity engaged in the severance of coal as required pursuant to KRS Chapter 143.
  6. The assessments imposed by this section shall supersede any assessment imposed pursuant to KRS 342.1242 for the calendar years of 2017 and 2018. Any amount paid and collected that exceeds the assessment imposed by this section in calendar year 2017 shall be reimbursed to the employer or credited to the employer’s account subject to the preference of the employer.
  7. Assessments pursuant to this section and KRS 342.1242 that are collected by the Kentucky Worker’s Compensation Funding Commission shall be transferred to the Kentucky Employers’ Mutual Insurance Authority.
  8. When the Kentucky Workers’ Compensation Funding Commission and the Kentucky Employers’ Mutual Insurance Authority have determined final audits are closed and the liability of the fund is fully funded, then the authority for imposing assessment rates pursuant to this section and KRS 342.1242 shall cease to exist. Any remaining assessments received following the exhaustion of liabilities shall be refunded pro rata to all employers who have paid an assessment in the year that liabilities are fully funded. When all distributions pursuant to KRS 342.1242 (8) have been completed, the Kentucky coal workers’ pneumoconiosis fund shall be abolished. The Kentucky Employers’ Mutual Insurance Authority may thereafter apply all funds received through subrogation or otherwise to expenses incurred in the administration and distribution of funds.

HISTORY: 2017 ch. 173, § 3, effective April 10, 2017; 2018 ch. 54, § 7, effective July 14, 2018; 2020 ch. 122, § 2, effective July 15, 2020.

342.125. Reopening and review of award or order — Grounds — Procedures — Time limitations — Credit for previously-awarded retraining incentive benefits or income benefits awarded for coal-related pneumoconiosis.

  1. Upon motion by any party or upon an administrative law judge’s own motion, an administrative law judge may reopen and review any award or order on any of the following grounds:
    1. Fraud;
    2. Newly-discovered evidence which could not have been discovered with the exercise of due diligence;
    3. Mistake; and
    4. Change of disability as shown by objective medical evidence of worsening or improvement of impairment due to a condition caused by the injury since the date of the award or order.
  2. No claim which has been previously dismissed or denied on the merits shall be reopened except upon the grounds set forth in this section.
  3. Except for reopening solely for determination of the compensability of medical expenses, fraud, or conforming the award as set forth in KRS 342.730(1)(c)2., or for reducing a permanent total disability award when an employee returns to work, or seeking temporary total disability benefits during the period of an award, no claim shall be reopened more than four (4) years following the date of the original award or original order granting or denying benefits, when such an award or order becomes final and nonappealable, and no party may file a motion to reopen within one (1) year of any previous motion to reopen by the same party. Orders granting or denying benefits that are entered subsequent to an original final award or order granting or denying benefits shall not be considered to be an original order granting or denying benefits under this subsection and shall not extend the time to reopen a claim beyond four (4) years following the date of the final, nonappealable original award or original order.
  4. Reopening and review under this section shall be had upon notice to the parties and in the same manner as provided for an initial proceeding under this chapter. Upon reopening, the administrative law judge may end, diminish, or increase compensation previously awarded, within the maximum and minimum provided in this chapter, or change or revoke a previous order. The administrative law judge shall immediately send all parties a copy of the subsequent order or award. Reopening shall not affect the previous order or award as to any sums already paid thereunder, and any change in the amount of compensation shall be ordered only from the date of filing the motion to reopen. No employer shall suspend benefits during pendency of any reopening procedures except upon order of the administrative law judge.
    1. Upon the application of the affected employee, and a showing of progression of his previously-diagnosed occupational pneumoconiosis resulting from exposure to coal dust and development of respiratory impairment due to that pneumoconiosis and two (2) additional years of employment in the Commonwealth wherein the employee was continuously exposed to the hazards of the disease, the administrative law judge may review an award or order for benefits attributable to coal-related pneumoconiosis under KRS 342.732 . An application for review under this subsection shall be made within one (1) year of the date the employee knew or reasonably should have known that a progression of his disease and development or progression of respiratory impairment have occurred. Review under this subsection shall include a review of all evidence admitted in all prior proceedings. (5) (a) Upon the application of the affected employee, and a showing of progression of his previously-diagnosed occupational pneumoconiosis resulting from exposure to coal dust and development of respiratory impairment due to that pneumoconiosis and two (2) additional years of employment in the Commonwealth wherein the employee was continuously exposed to the hazards of the disease, the administrative law judge may review an award or order for benefits attributable to coal-related pneumoconiosis under KRS 342.732 . An application for review under this subsection shall be made within one (1) year of the date the employee knew or reasonably should have known that a progression of his disease and development or progression of respiratory impairment have occurred. Review under this subsection shall include a review of all evidence admitted in all prior proceedings.
    2. Benefits awarded as a result of a review under this subsection shall be reduced by the amount of retraining incentive benefits or income benefits previously awarded under KRS 342.732. The amount to be deducted shall be subtracted from the total amount awarded, and the remaining amount shall be divided by the number of weeks, for which the award was made, to arrive at the weekly benefit amount which shall be apportioned in accordance with the provisions of KRS 342.316 .
  5. In a reopening or review proceeding where there has been additional permanent partial disability awarded, the increase shall not extend the original period, unless the combined prior disability and increased disability exceeds fifty percent (50%), but less than one hundred percent (100%), in which event the awarded period shall not exceed five hundred twenty (520) weeks, from commencement date of the original disability previously awarded. The law in effect on the date of the original injury controls the rights of the parties.
  6. Where an agreement has become an award by approval of the administrative law judge, and a reopening and review of that award is initiated, no statement contained in the agreement, whether as to jurisdiction, liability of the employer, nature and extent of disability, or as to any other matter, shall be considered by the administrative law judge as an admission against the interests of any party. The parties may raise any issue upon reopening and review of this type of award which could have been considered upon an original application for benefits.
  7. The time limitation prescribed in this section shall apply to all claims irrespective of when they were incurred, or when the award was entered, or the settlement approved. However, claims decided prior to December 12, 1996, may be reopened within four (4) years of the award or order or within four (4) years of December 12, 1996, whichever is later, provided that the exceptions to reopening established in subsections (1) and (3) of this section shall apply to these claims as well.

HISTORY: 4902: amend. Acts 1960, ch. 147, § 12; 1972, ch. 78, § 24; 1980, ch. 104, § 4, effective July 15, 1980; 1987 (Ex. Sess.), ch. 1, § 16, effective October 26, 1987; 1994, ch. 181, Part 6, § 27, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 6, effective December 12, 1996; 2000, ch. 514, § 7, effective July 14, 2000; 2018 ch. 40, § 4, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). This statute was amended in Section 4 of 2018 Ky. Acts ch. 40. Subsection (2) of Section 20 of that Act reads, “Sections 2, 4, and 5 and subsection (7) of Section 13 of this Act are remedial and shall apply to all claims irrespective of the date of injury or last exposure, provided that, as applied to any fully and finally adjudicated claim, the amount of indemnity ordered or awarded shall not be reduced and the duration of medical benefits shall not be limited in any way.”

NOTES TO DECISIONS

Analysis

  1. In General.
  2. Construction.
  3. Application.
  4. Agreements.
  5. Review.
  6. — Jurisdiction.
  7. —Grounds.
  8. — —Change of Conditions.
  9. — — Fraud.
  10. — — Mistake.
  11. — — Newly Discovered Evidence.
  12. —Time of Review.
  13. Motion or Application.
  14. —Standing.
  15. — Time Limitations.
  16. Notice.
  17. Parties.
  18. Issues and Evidence Considered.
  19. Burden of Proof.
  20. Discretion of Board.
  21. Res Judicata.
  22. Modification of Award.
  23. — Reduction.
  24. — Retroactivity.
  25. — — Interest.
  26. —Credit to Employer.
  27. — Attorney's Fee.
  28. Disputation of Medical Bills.
  29. Impermissible Relitigation.
  30. Distinction Between Medical Concepts.
  31. Administrative Law Judge's Opinion.
  32. Coal Workers' Pneumoconiosis.
1. In General.

The right of an interested party to petition for the reopening of a case under this section is in addition to and not dependent upon the right to appeal to the courts from the Board’s finding. Lincoln Coal Co. v. Watts, 275 Ky. 130 , 120 S.W.2d 1026, 1938 Ky. LEXIS 381 ( Ky. 1938 ). See Columbus Mining Co. v. Sanders, 289 Ky. 438 , 159 S.W.2d 14, 1942 Ky. LEXIS 579 ( Ky. 1942 ).

The forum for reopening is by action before the Board, not before the court on appeal. N. G. Gilbert Corp. v. Russell, 451 S.W.2d 613, 1970 Ky. LEXIS 401 ( Ky. 1970 ).

The Workers’ Compensation Board may validly reopen a claim which was previously dismissed without prejudice. Zeigler Coal Co. v. Hopson, 726 S.W.2d 309, 1986 Ky. App. LEXIS 1513 (Ky. Ct. App. 1986).

Although concept of finality applies to worker’s compensation awards, this section provides some relief from the principles of res judicata and permits a reopening under certain conditions. AAA Mines Servs. v. Wooten, 959 S.W.2d 440, 1998 Ky. LEXIS 5 ( Ky. 1998 ).

When an award becomes final, relief from its terms may be obtained only if it is reopened pursuant to the provisions of the statute. Uninsured Employers' Fund v. Turner, 981 S.W.2d 544, 1998 Ky. LEXIS 136 ( Ky. 1998 ).

Requirements for reopening a workers’ compensation claim that existed on the date of the injury controlled parties’ rights and obligations even though the motion to reopen was filed after December 12, 1996, the date of an amendment to KRS 342.125 , which changed standard for reopening. Woodland Hills Mining, Inc. v. McCoy, 105 S.W.3d 446, 2003 Ky. LEXIS 114 ( Ky. 2003 ).

2. Construction.

Considering this section and former subsection (3) of KRS 342.316 together, the language of former subsection (3) of KRS 342.316 leads to the conclusion that employees disabled from occupational diseases have been restricted by a limitation not imposed upon employees disabled from traumatic injury. Harvey Coal Co. v. Colwell, 313 S.W.2d 274, 1958 Ky. LEXIS 250 ( Ky. 1958 ).

The only difference between CR 60.02 and this section is the Board’s authority to change its final award based upon a “change of condition” of the claimant. Keefe v. O. K. Precision Tool & Die Co., 566 S.W.2d 804, 1978 Ky. App. LEXIS 535 (Ky. Ct. App. 1978).

The 1997 version of the statute did not require evidence of both progression of the disease on chest X-ray and increased respiratory impairment in order to allow the reopening of a workers’ compensation settlement; increased respiratory impairment, without progression of the disease was sufficient. Whitaker v. Hurst, 2000 Ky. App. LEXIS 30 (Ky. Ct. App. Apr. 7, 2000), aff'd, 39 S.W.3d 819, 2001 Ky. LEXIS 44 ( Ky. 2001 ).

Where an employee sustained a work-related injury that resulted in an award of benefits for an occupational disability of 15 percent, and the employee’s motion to reopen the claim resulted in an increased award of benefits for total occupational disability, the Administrative Law Judge applied the proper criteria, as the 1996 amendments to KRS 342.125 , which required a proof of change in condition by objective medical evidence, was not entitled to retroactive application. Dingo Coal Co. v. Tolliver, 2003 Ky. App. LEXIS 37 (Ky. Ct. App. Feb. 14, 2003), aff'd, 129 S.W.3d 367, 2004 Ky. LEXIS 75 ( Ky. 2004 ).

The Legislature in amending KRS 342.125(5)(a) intended for the additional-exposure requirement to apply to all awards made under KRS 342.732 , just as the one-year limitation did, but inadvertently neglected to add the words “or progression” when amending the first sentence. Bolin v. T & T Mining, 231 S.W.3d 130, 2007 Ky. LEXIS 171 ( Ky. 2007 ).

The temporary total disability (TTD) exception in KRS 342.125(3) concerns the procedure for reopening a workers’ compensation benefit award. KRS 342.125(8) provides that the exceptions to reopening apply to all claims, and therefore, it permits any claim to be reopened at any time upon proof that an injury causes TTD. Officeware v. Jackson, 247 S.W.3d 887, 2008 Ky. LEXIS 60 ( Ky. 2008 ).

3. Application.

This section applies only to the Board’s final orders. Davenport v. National Carbide Co., 339 S.W.2d 473, 1960 Ky. LEXIS 468 ( Ky. 1960 ).

Due to the remedial nature of the 1987 amendment to this section, awards made before October 26, 1987, may be reopened on showing of change of occupational disability. Peabody Coal Co. v. Gossett, 819 S.W.2d 33, 1991 Ky. LEXIS 180 ( Ky. 1991 ).

The statute did not apply to preclude a retraining incentive benefit (RIB) award claim where a worker filed an unsuccessful RIB claim against one employer, subsequently became employed by a different employer, sustained additional exposure to coal dust, and, some four (4) years after the filing of the initial claim, filed a new RIB claim against the subsequent employer. Blackburn v. Lost Creek Mining, 31 S.W.3d 921, 2000 Ky. LEXIS 143 ( Ky. 2000 ).

Focus of inquiry at a reopening of a workers’ compensation award under KRS 342.125(1), as amended in 1987, (a part of the Kentucky Workers’ Compensation Act), is whether the effects of a work-related injury were a substantial factor in causing the worker’s post-award loss of earning capacity. Brian House v. BJK Indus., 103 S.W.3d 13, 2003 Ky. LEXIS 74 ( Ky. 2003 ).

In light of appellant workers’ compensation claimant’s increased symptoms, increased functional impairment, and lower post-injury pay, the record showed that the effects of the claimant’s second work-related injury after a prior award were a substantial factor in causing the post-award loss of earning capacity, which met the standard for reopening under KRS 342.125(1) of the Kentucky Workers’ Compensation Act, and given the extent of the increased symptoms, such as loss of strength in the claimant’s hands and problems with gripping objects, which could reasonably have been considered factors which affected the claimant’s ability to do manual labor; the increased impairment; and the additional loss of earning capacity, the finding of an additional 40 percent disability was reasonable and should not have been reversed by the Court of Appeals. Brian House v. BJK Indus., 103 S.W.3d 13, 2003 Ky. LEXIS 74 ( Ky. 2003 ).

December 12, 1996 amendment to KRS 342.125(1) does not govern the type of evidence necessary to establish the right to greater benefits under KRS 342.730 with respect to a reopened claim, but changes only a procedural requirement, i.e., one of the grounds upon which a motion to reopen may be granted; in other words, under KRS 342.0015 , KRS 342.125(1)(d) addresses the necessary prima facie showing in order to prevail on a motion to reopen that is filed on or after December 12, 1996, but has no effect on the substantive proof requirements for a claim that arose before its effective date. Dingo Coal Co. v. Tolliver, 129 S.W.3d 367, 2004 Ky. LEXIS 75 ( Ky. 2004 ).

Employee, who suffered a work-related back injury, was precluded from recovering medical expenses for her depression through a motion to reopen. Under KRS 342.125 , the employee could not bring a motion to reopen based on a decision known to the employee during the pendency of her original claim but which she did not present. Sayre Christian Vill. Nursing Home v. Ramsey, 2006 Ky. App. LEXIS 392 (Ky. Ct. App. Dec. 22, 2006), aff'd, 239 S.W.3d 56, 2007 Ky. LEXIS 239 ( Ky. 2007 ).

Although KRS 342.125(1)(c) permitted an award to be reopened based on a mistake of law existing at the time the award was made, KRS 342.125(3) limited the period for reopening to four years after the original award or order granting or denying benefits. Since the employee did not file a motion to reopen within that four-year period, the employee could not seek to reopen the award. Burroughs v. Martco, 339 S.W.3d 461, 2011 Ky. LEXIS 74 ( Ky. 2011 ).

Since the employee provided sufficient evidence with the employee’s motion to reopen, including medical reports of the employee’s treating physician, the Board could find that the employee made a preliminary prima facie showing that the employee’s medical condition had worsened. That meant that the employee was entitled under KRS 342.125 to reopen the award. Commonwealth v. Allen, 2013 Ky. Unpub. LEXIS 70 (Ky. Apr. 25, 2013), modified, 2013 Ky. LEXIS 475 (Ky. Aug. 29, 2013).

Spouse's claim that she was entitled to recover benefits under Ky. Rev. Stat. Ann. § 342.750 was not properly brought under Ky. Rev. Stat. Ann. § 342.125 where the spouse was not a party to her husband's claim, and the husband had waived entitlement to any additional benefits and had no claim to reopen. Family Dollar v. Baytos, 525 S.W.3d 65, 2017 Ky. LEXIS 386 ( Ky. 2017 ).

4. Agreements.

Under this section, Workers’ Compensation Board had power to reopen case on showing of change of conditions, after an agreement as to compensation and a release had been filed, and was not restricted to diminishing or increasing compensation previously awarded and being paid pending application, in view of authority to “change or revoke its previous order” conferred by this section. Louisville Milling Co. v. Turner, 209 Ky. 515 , 273 S.W. 83, 1925 Ky. LEXIS 532 ( Ky. 1925 ).

Where employer and employee reach agreement for compensation which is then approved by compensation board, this is an award by Board, and employee’s subsequent claim for additional compensation is not barred by statute of limitations. Black Mountain Corp. v. Middleton, 243 Ky. 527 , 49 S.W.2d 318, 1932 Ky. LEXIS 143 ( Ky. 1932 ).

Compensation agreement between employer and employee, when approved by the Board, is an award of such Board and, as such, may be reopened and reviewed under provisions of this section. Woodford Oil & Gas Co. v. Creech, 250 Ky. 307 , 62 S.W.2d 1031, 1933 Ky. LEXIS 679 ( Ky. 1933 ).

The fact that a settlement has been made is no bar to a reopening of a case by the Board. Lincoln Coal Co. v. Watts, 275 Ky. 130 , 120 S.W.2d 1026, 1938 Ky. LEXIS 381 ( Ky. 1938 ).

Board was authorized under this section and KRS 342.050 (repealed) to review case and make additional award, where earlier settlement agreements, which had become effective upon approval by Board, were vacated for fraud of employer upon Board in misrepresenting extent of employee’s injuries and for mistake by employee as to extent of disability and in believing that payments under agreements were for compensation due and not in full settlement of case. Crummies Creek Coal Co. v. Hensley, 284 Ky. 243 , 144 S.W.2d 206, 1940 Ky. LEXIS 461 ( Ky. 1940 ).

If a voluntary settlement agreement has been filed with the compensation board, as provided in KRS 342.265 , it becomes an award of the Board and can be reopened and reviewed at any time during the compensation period on the ground of fraud or mistake. Fiorella v. Clark, 298 Ky. 817 , 184 S.W.2d 208, 1944 Ky. LEXIS 1011 ( Ky. 1944 ).

Final award means an enforceable award of the Board; the fact that a settlement agreement is made final does not forever preclude all other actions that may be taken in connection with that award, such as review or reopening pursuant to this section. American Standard, Inc. v. Stephen, 565 S.W.2d 158, 1978 Ky. App. LEXIS 505 (Ky. Ct. App. 1978).

A settlement between employer and employee filed with the Board and approved by the Board is an award and is subject to reopening. Schulte v. Workmen's Compensation Board, 571 S.W.2d 108, 1978 Ky. App. LEXIS 587 (Ky. Ct. App. 1978).

Where claimant failed to raise issue that award for permanent total occupational disability due to pneumoconiosis for 425 weeks was erroneous in a petition for reconsideration or appeal of the award, he cannot raise it in action on another claim for permanent total occupational disability. Marcum v. Wolf Creek Collieries, 850 S.W.2d 48, 1993 Ky. LEXIS 68 ( Ky. 1993 ).

Settlement was set aside where constructive fraud occurred in the reliance of both sides on doctor’s opinion that claimant had reached maximum medical improvement, was 8% functionally impaired and would have restrictions for only one (1) year but his condition did not improve as predicted by the doctor but rather claimant required additional surgery. Kendrick v. Bailey Vault Co., 944 S.W.2d 147, 1997 Ky. App. LEXIS 34 (Ky. Ct. App. 1997), limited, Coomer v. Phelps, 2004 Ky. App. Unpub. LEXIS 275 (Ky. Ct. App. Mar. 12, 2004), limited, Coomer v. Phelps, 172 S.W.3d 389, 2005 Ky. LEXIS 298 ( Ky. 2005 ).

Settlement agreement that included language that the claim against employer was dismissed with prejudice and that claimant waived any right to ever reopen claim was not enforceable since it was based on a mutual mistake with respect to the ability of claimant to return to gainful employment within a certain period of time. Kendrick v. Bailey Vault Co., 944 S.W.2d 147, 1997 Ky. App. LEXIS 34 (Ky. Ct. App. 1997), limited, Coomer v. Phelps, 2004 Ky. App. Unpub. LEXIS 275 (Ky. Ct. App. Mar. 12, 2004), limited, Coomer v. Phelps, 172 S.W.3d 389, 2005 Ky. LEXIS 298 ( Ky. 2005 ).

Once an administrative law judge acts upon a settlement, it is an award within the meaning of this section. Whitaker v. Hurst, 2000 Ky. App. LEXIS 30 (Ky. Ct. App. Apr. 7, 2000), aff'd, 39 S.W.3d 819, 2001 Ky. LEXIS 44 ( Ky. 2001 ).

5. Review.

This section does not require that the same administrative law judge (ALJ) who rendered the decision in a case must be the one to reopen and review his own order in the event a claimant seeks reopening of the matter. Tuttle v. O'Neal Steel, 884 S.W.2d 661, 1994 Ky. LEXIS 99 ( Ky. 1994 ).

6. — Jurisdiction.

Because an employee sought strict compliance with the terms of a workers’ compensation award, pursuant to KRS 342.305 , the sole forum for enforcing the terms of the award was a Circuit Court; therefore, the administrative law judge lacked jurisdiction under KRS 342.125 to deny the employer’s request to recoup an overpayment. Southeast Coal Co. v. Mansfield, 231 S.W.3d 122, 2007 Ky. LEXIS 163 ( Ky. 2007 ).

7. —Grounds.

Although the treating physician testified the claimant had sustained an increase in functional disability — from 10% to 25% — there was no evidence to support a finding that he had sustained an increase in occupational disability from the time the settlement agreement was entered until the time he filed a motion to reopen, and the claimant failed to meet his burden of proof on motion to reopen that he had sustained an increase in occupational disability. Gro-Green Chemical Co. v. Allen, 746 S.W.2d 69, 1987 Ky. App. LEXIS 622 (Ky. Ct. App. 1987).

Claimant is not entitled automatically to a hearing on the merits of a motion to reopen; the party moving pursuant to this section to reopen a claim is required to make a reasonable prima facie preliminary showing of the existence of a substantial possibility of one or more of the prescribed conditions. Tuttle v. O'Neal Steel, 884 S.W.2d 661, 1994 Ky. LEXIS 99 ( Ky. 1994 ).

Upon a reopening, partial permanent disability (PPD) benefits may be awarded and made payable retroactively to the date the motion to reopen was filed and continue for a period of 425 weeks, rather than the date after temporary total disability (TTD) payments were terminated. Newberg v. Cash, 854 S.W.2d 791, 1993 Ky. App. LEXIS 74 (Ky. Ct. App. 1993).

A motion to reopen pursuant to this section may not be based on a condition known to the claimant during the pendency of his original claim but which he did not present. Slone v. Jason Coal Co., 902 S.W.2d 820, 1995 Ky. LEXIS 71 ( Ky. 1995 ).

The failure of the claimant to present any evidence regarding his mental condition in the original workers’ compensation claim cannot be cured by a motion to reopen more than two (2) years later. Slone v. Jason Coal Co., 902 S.W.2d 820, 1995 Ky. LEXIS 71 ( Ky. 1995 ).

Where claimant in a workers’ compensation action failed to present his psychiatric condition during the original claim, he cannot contend in a later action that his condition has worsened such that it is “new in degree of severity,” sufficient to support a motion to reopen. Slone v. Jason Coal Co., 902 S.W.2d 820, 1995 Ky. LEXIS 71 ( Ky. 1995 ).

8. — —Change of Conditions.

Where employer’s doctor advised employee that he would be able in two (2) months to do light manual labor and employee entered into settlement with employer, evidence supported finding of Board that employee was totally disabled and that there had been change of condition warranting further compensation. Black Mountain Corp. v. Swift, 241 Ky. 333 , 43 S.W.2d 1008, 1931 Ky. LEXIS 78 ( Ky. 1931 ).

Prima facie showing of change of condition entitles applicant to reopening of his case by compensation board only where statements made in motion to reopen are not controverted by pleading or proof. Woodford Oil & Gas Co. v. Creech, 250 Ky. 307 , 62 S.W.2d 1031, 1933 Ky. LEXIS 679 ( Ky. 1933 ).

Employer could petition for review of award on ground of change of physical condition of employee, notwithstanding award had been affirmed on appeal. Leckie Collieries Co. v. Branham, 275 Ky. 748 , 122 S.W.2d 776, 1938 Ky. LEXIS 503 ( Ky. 1938 ).

Order of Board granting to employer a reopening of case because of alleged improvement in employee’s condition, notwithstanding Board had formerly denied reopening on same factual situation, was not a final, appealable order. North American Refractories Co. v. Day, 284 Ky. 458 , 145 S.W.2d 75, 1940 Ky. LEXIS 526 ( Ky. 1940 ).

Where there is any evidence of probative value to support Workers’ Compensation Board’s finding upon review that there has been a subsequent change in the extent of claimant’s disability, the finding is binding upon the courts. Blue Diamond Coal Co. v. Phillips, 303 Ky. 693 , 198 S.W.2d 799, 1946 Ky. LEXIS 922 ( Ky. 1946 ).

The fact that employee, who had been awarded compensation on basis of 50% permanent disability following accident in which he had received severe burns, later secured similar employment from another employer at same wage he had received before injury did not constitute change of condition requiring reopening of case, nor did employee’s failure to inform compensation board and former employer, pending appeal in original compensation proceedings, of such subsequent employment constitute a fraud on Board or employer. Bell Coal Co. v. Jackson, 301 Ky. 673 , 192 S.W.2d 947, 1946 Ky. LEXIS 542 ( Ky. 1946 ).

Permanence of a cause inducing disability is of itself in the nature of a change if it was assumed at the original hearing of a claimant’s application that the nature of the disability was only temporarily total. Clear Fork Coal Co. v. Gaylor, 286 S.W.2d 519, 1956 Ky. LEXIS 415 ( Ky. 1956 ).

Where, on claim for permanent total disability from silicosis, claimant, after a hearing at which total disability from silicosis was not established, accepted an agreed award of $2,500, his motion to reopen the matter, based on affidavits of physicians that he then had demonstrable silicosis, should have been granted on the ground of change of condition or mistake. Turner Elkhorn Mining Co. v. O'Bryan, 414 S.W.2d 410, 1967 Ky. LEXIS 355 ( Ky. 1967 ).

Where the claimant in a workers’ compensation action can present evidence to show a substantial change of condition after the denial of an earlier claim on the same injury, the Board is empowered to reopen and make an award. Mayes v. Potter & Brumfield, Inc., 427 S.W.2d 567, 1968 Ky. LEXIS 677 ( Ky. 1968 ).

A mere fluctuation in economic conditions will not be considered a “change of conditions” within the meaning of the reopening law. The change of conditions the reopening law contemplates is a change of the worker’s physical condition. Osborne v. Johnson, 432 S.W.2d 800, 1968 Ky. LEXIS 353 ( Ky. 1968 ), limited, Crib Diaper Service v. Standifer, 436 S.W.2d 501, 1969 Ky. LEXIS 477 ( Ky. 1969 ).

It was error for the Board to summarily deny the motion to reopen in face of the uncontroverted showing that a material change in condition had occurred since the previous award. Ratliff v. Harris Bros. Constr. Co., 441 S.W.2d 127, 1969 Ky. LEXIS 292 ( Ky. 1969 ).

Although the Board was justified in closing an award at the end of its likely duration based on competent medical evidence, the parties could resort to reopening in the event of a change in condition. Royal Crown Bottling Co. v. Bedwell, 449 S.W.2d 767, 1970 Ky. LEXIS 479 ( Ky. 1970 ).

Where the Board was not persuaded by the claimant’s evidence that a change of condition had occurred and the evidence in her behalf was not so strong as to require a finding in her favor, the Board’s decision not to reopen could not be upset on judicial review. Calvert v. Brown & Williamson Tobacco Co., 465 S.W.2d 75, 1971 Ky. LEXIS 435 ( Ky. 1971 ).

Where at the original hearing there was no evidence that the claimant had silicosis and he did not know he had it, when the situation was subsequently discovered, the Board was justified in reopening and adjusting the award. Young v. Varney, 469 S.W.2d 344, 1971 Ky. LEXIS 293 ( Ky. 1971 ).

Where the physician who had testified for the fund at the initial Board hearing testified for the claimant on his motion to reopen stating that the claimant now had silicosis, the evidence constituted substantial justification for the Board’s reopening and readjustment of the award. Young v. Varney, 469 S.W.2d 344, 1971 Ky. LEXIS 293 ( Ky. 1971 ).

Where an employee had injured her elbow and been awarded permanent partial disability and, after two (2) operations on the injured elbow, the injured elbow had continued to grow worse, the Worker’s Compensation Board was authorized to reopen the previous award even though the physician who treated the claimant’s elbow at the time of the previous award was not called as a witness and the physician who did testify had no knowledge of claimant’s physical condition at the time of the previous award. Winn Dixie Louisville, Inc. v. Watson, 473 S.W.2d 148, 1971 Ky. LEXIS 156 ( Ky. 1971 ).

Where the Workers’ Compensation Board had made an open-ended award, it should have treated the plaintiff’s “motion and application,” accompanied by the uncontroverted affidavit that the employee had returned to his former employment, as a proceeding to terminate under subsection (1) of this section, predicated on a “change of conditions” so that the rights of the parties could be determined. Ford Furniture Co. v. Claywell, 473 S.W.2d 821, 1971 Ky. LEXIS 165 ( Ky. 1971 ).

A reopening of an award was authorized where the claimant had been given an award for 15% permanent partial disability and thereafter underwent surgery which resulted in 100% disability even though there was testimony that in the months after the surgery it was expected that the disability would decrease to 15% permanent. Standard Products Co. v. Estes, 481 S.W.2d 98, 1972 Ky. LEXIS 234 ( Ky. 1972 ).

Claimant who had entered into an agreement for compensation predicated on an injury to a specific member of the body was not precluded from reopening and recovering compensation for disability caused by secondary involvement of another part of the body resulting from the same accident. Jo Ann Coal Co. v. Smith, 492 S.W.2d 192, 1973 Ky. LEXIS 505 ( Ky. 1973 ).

Where settlement resulted in award for 20% disability, a change in condition resulting in 100% disability was sufficient change of condition to permit disturbance of earlier settlement. Swift & Co. v. Blades, 502 S.W.2d 513, 1973 Ky. LEXIS 72 ( Ky. 1973 ).

Where evidence in the record showed that claimant was totally disabled by reason of psychoneurosis prior to his traumatic injury for which injury he was awarded permanent partial disability payments, there was no basis for reopening the judgment to award workers’ compensation benefits to the claimant for total and permanent disability unless there was evidence that the claimant recovered from his psychoneurosis and was not disabled by it at the time of the original award. Yocom v. Meade, 514 S.W.2d 687, 1974 Ky. LEXIS 328 ( Ky. 1974 ).

Where the functional disability of a garbage collector who entered into an agreement whereby he received payments for a 35% partial disability had not substantially changed, he was not entitled to have the case reopened and the compensation increased to total disability. Central City v. Anderson, 521 S.W.2d 246, 1975 Ky. LEXIS 154 ( Ky. 1975 ).

Reopening of an award must be based on a change in physical condition. Continental Air Filter Co. v. Blair, 681 S.W.2d 427, 1984 Ky. LEXIS 276 ( Ky. 1984 ).

A change in economic conditions is not a ground for reopening an award under subsection (1) of this section. Continental Air Filter Co. v. Blair, 681 S.W.2d 427, 1984 Ky. LEXIS 276 ( Ky. 1984 ).

Pursuant to the 1987 amended version of this section, if the worker can prove that he is now unemployable because of the particular effects of his injury and not from general economic conditions, he has established increased occupational disability. Peabody Coal Co. v. Gossett, 819 S.W.2d 33, 1991 Ky. LEXIS 180 ( Ky. 1991 ).

Any change in a worker’s actual occupational disability which may have occurred between an earlier settlement of a claim and a second injury, and is attributable to the first injury which was the subject of an earlier settlement, properly is the subject of a motion to reopen that claim. Newberg v. Davis, 841 S.W.2d 164, 1992 Ky. LEXIS 175 ( Ky. 1992 ).

In a claim for a subsequent injury, the relevant change in disability occurs during the period which begins immediately preceding the injury and ends at the point at which the worker reaches maximum medical improvement after the injury. Newberg v. Davis, 841 S.W.2d 164, 1992 Ky. LEXIS 175 ( Ky. 1992 ).

Under this section, a claimant is required to show that a change in his physical condition since the date of a settlement has produced an increase in his occupational disability in order to reopen the earlier award. The relevant change in occupational disability, therefore, would be the difference between claimant’s actual occupational disability on the date of the settlement, regardless of the figure for which he settled, and his occupational disability at the time of reopening. Newberg v. Davis, 841 S.W.2d 164, 1992 Ky. LEXIS 175 ( Ky. 1992 ).

Claimant did not show a “change in occupational disability” as required to support a motion to reopen for additional benefits, where claimant was already totally and permanently disabled both at the time of settlement agreement setting disability rating at 50.5%, and at the time of the motion to reopen. Commercial Drywall v. Wells, 860 S.W.2d 299, 1993 Ky. App. LEXIS 112 (Ky. Ct. App. 1993).

Where claimant, unlike claimant in Peabody Coal Company v. Gossett, 819 S.W.2d 33, 1991 Ky. LEXIS 180 ( Ky. 1991 ), made no showing that he had been frozen out of the labor market because of the particular effects of his injury, the decision to deny claimant’s motion to reopen for his failure to make a reasonable, prima facie showing that his occupation disability had increased since the settlement despite the fact that his physical condition and/or restrictions had not changed was clearly supported by the evidence. Tuttle v. O'Neal Steel, 884 S.W.2d 661, 1994 Ky. LEXIS 99 ( Ky. 1994 ).

Where injured claimant had previously received a permanent, partial disability benefit for pneumoconiosis he was not eligible to reopen his pneumoconiosis claim and be awarded additional benefits unless he could demonstrate that he incurred an increase in his occupational disability due to the pneumoconiosis, as required by this section. Helton v. Canada Mountain Coal Augering, 892 S.W.2d 588, 1995 Ky. LEXIS 30 ( Ky. 1995 ).

If additional exposure of claimant is the basis for an allegation of increased occupational disability, a reopening under this section would be the proper avenue for requesting relief. In a reopening proceeding under this section the movant must take a prima facie showing before the respondent is required to marshal its defenses. Pikeville Coal Company/Chisholm Coal Co. v. Sullivan, 895 S.W.2d 574, 1995 Ky. LEXIS 42 ( Ky. 1995 ).

X-ray evidence of a change from category to 1/2 constituted a sufficient showing of a “progression” of pneumoconiosis to authorize reopening of claim for retraining incentive benefit (RIB). AAA Mines Servs. v. Wooten, 959 S.W.2d 440, 1998 Ky. LEXIS 5 ( Ky. 1998 ).

For a worker to prevail on a motion to reopen a retraining incentive benefit, the plain language of subsection (2)(a) (now (5)(a)) requires a prima facie showing of both a progression of the disease and either the development or the progression of a respiratory impairment. Campbell v. Universal Mines, 963 S.W.2d 623, 1998 Ky. LEXIS 31 ( Ky. 1998 ).

When a workers’ compensation claimant, on reopening, prevails before an administrative law judge on the issue of whether the claimant sustained a post-award increase in occupational disability due to the effects of the claimant’s work injury, the standard of review is whether the finding in the claimant’s favor is reasonable under the evidence. Brian House v. BJK Indus., 103 S.W.3d 13, 2003 Ky. LEXIS 74 ( Ky. 2003 ).

There was substantial evidence to support the administrative law judge’s finding that there was a change of disability pursuant to KRS 342.125(1) sufficient to reopen and increase the employee’s workers’ compensation award; the employee’s doctor testified that the employee was permanently incapable of performing any work, which was a change of disability from the doctor’s assessment around the time of the injury, when the doctor thought the employee could perform light duty work. Garrett Mining Co. v. Nye, 122 S.W.3d 513, 2003 Ky. LEXIS 231 ( Ky. 2003 ).

KRS 342.125(1)(d) requires that, on a motion to reopen, a change of disability must be shown by objective medical evidence of worsening or improvement of impairment due to a condition caused by the injury since the date of the award or order. The terms physical condition and functional impairment were different medical concepts and where an injured worker did not present evidence of a change in his impairment rating since his initial injury, but his evidence concerning a change in disability related only to a change in his physical condition, the dismissal of his motion to reopen was affirmed. Parris v. Staffing Alternative, Inc., 2003 Ky. App. LEXIS 313 (Ky. Ct. App. Dec. 12, 2003), rev'd, 2004 Ky. Unpub. LEXIS 45 (Ky. Oct. 21, 2004).

Since the record included nothing that permitted an employee’s earlier back injury to be compared with her condition when she filed her motion to reopen, it was an abuse of discretion to grant the motion. Also, the decision was prejudicial to the employer because KRS 342.125(8) would have barred a subsequent motion to reopen. Hodges v. Sager Corp., 182 S.W.3d 497, 2005 Ky. LEXIS 328 ( Ky. 2005 ).

In regard to reopening a workers’ compensation determination, evidence of a worsening of impairment requires that there be a comparison of impairment at two (2) points in time. Hodges v. Sager Corp., 182 S.W.3d 497, 2005 Ky. LEXIS 328 ( Ky. 2005 ).

Because an employee only had to show a complete and permanent inability to work in order to show an “impairment,” the Workers’ Compensation Board erred in concluding that the employee’s motion to reopen under KRS 342.125(1)(d) required evidence of an increased impairment rating, as defined in KRS 342.0011(35). Farris v. City of Louisville, 209 S.W.3d 486, 2006 Ky. App. LEXIS 343 (Ky. Ct. App. 2006).

Employee filed a timely claim to reopen a previous award based on a change of condition since the employee did not learn from her treating doctor that her depression might be related to her work related injury until 2005, and the employee promptly filed a motion to amend to include the claim for depression shortly thereafter. GE v. Turpen, 245 S.W.3d 781, 2006 Ky. App. LEXIS 379 (Ky. Ct. App. 2006).

Court of Appeals properly affirmed a majority of the Workers' Compensation Board awarding permanent partial disability benefits to a worker because his condition had worsened where the first administrative law judge (ALJ) found that the worker had a 13% permanent impairment rating, the current ALJ found that he had a 23% permanent impairment rating, it was the ALJ's opinion, as fact finder, regarding the worker's permanent impairment rating that controlled, not the opinion of a physician, and the ALJ on reopening found that the worker was not capable of performing the type of work he performed at the time of his injury, which was also evidence of a change in impairment. LKLP CAC Inc. v. Fleming, 520 S.W.3d 382, 2017 Ky. LEXIS 370 ( Ky. 2017 ).

9. — — Fraud.

Workers’ Compensation Board was authorized to reopen case on application of employer on the ground of fraud, although case had been remanded by Court of Appeals to the board to determine extent to which employee’s injury and preexisting disease contributed to his disability. Kingston-Pocahontas Coal Co. v. Maynard, 223 Ky. 725 , 4 S.W.2d 702, 1928 Ky. LEXIS 424 ( Ky. 1928 ).

When case was reopened for fraud, finding of Board on fraud was conclusive on court. Himyar Coal Corp. v. Miller, 251 Ky. 768 , 65 S.W.2d 1014, 1933 Ky. LEXIS 952 ( Ky. 1933 ).

It cannot be said that if the injured employee is fortunate enough to obtain employment at a greater wage than he was receiving before he was injured he has perpetrated a fraud either upon the board or his former employer. Bell Coal Co. v. Jackson, 301 Ky. 673 , 192 S.W.2d 947, 1946 Ky. LEXIS 542 ( Ky. 1946 ).

In the absence of fraud, the board cannot treat unfiled settlement forms as an award which it can review under this section. Princess Elkhorn Coal Co. v. Ousley, 356 S.W.2d 37, 1962 Ky. LEXIS 88 ( Ky. 1962 ).

Because an insurer was perpetuating a constructive fraud by terminating payment of workers’ compensation benefits, an administrative law judge’s decision reopening the final decision regarding those payments was correct. Journey Operating, LLC v. Zurich Am. Ins. Co., 2009 Ky. App. LEXIS 225 (Ky. Ct. App. Nov. 6, 2009), aff'd, 323 S.W.3d 696, 2010 Ky. LEXIS 261 ( Ky. 2010 ).

10. — — Mistake.

Board could change or revoke award made to bigamous wife and substitute lawful wife and child in place of bigamous wife, although application of lawful wife was made more than one (1) year from death of employee. Johnson v. Hardy-Burlingham Mining Co., 205 Ky. 752 , 266 S.W. 635, 1924 Ky. LEXIS 227 ( Ky. 1924 ).

An attempt to come within the provision of this section by merely filing affidavits which showed only that the member of the Board who decided the case may have been mistaken as to the law and did not show a change of condition, mistake or fraud was insufficient to reopen an order of the Board denying compensation. Southern Mining Co. v. Collins, 222 Ky. 388 , 300 S.W. 896, 1927 Ky. LEXIS 931 ( Ky. 1927 ).

This section covers mistakes of law as well as fact, unless case has been reviewed on appeal. Stearns Coal & Lumber Co. v. Vanover, 262 Ky. 808 , 91 S.W.2d 518, 1936 Ky. LEXIS 104 ( Ky. 1936 ).

Where there was nothing in record of original hearing, or in affidavits of doctors (who had testified at original hearing) filed in support of motion to review order, to indicate that Board had misinterpreted medical testimony on original hearing, as claimed in motion, the Board was not authorized to grant a review. Palko v. Fordson Coal Co., 293 Ky. 511 , 169 S.W.2d 602, 1943 Ky. LEXIS 659 ( Ky. 1943 ).

A mistake, regardless of whether it is of law or of fact, must be founded upon ignorance before relief may be granted on account of it. Wells v. Fox Ridge Mining Co., 243 S.W.2d 676, 1951 Ky. LEXIS 1160 ( Ky. 1951 ).

When subsequent events indicate that an award was substantially induced by a misconception as to the cause, nature or extent of the disability at the time of the hearing, justice requires further inquiry. Messer v. Drees, 382 S.W.2d 209, 1964 Ky. LEXIS 340 ( Ky. 1964 ).

A reopening is justified when events subsequent to the hearing on which an award was made reveal that it was substantially induced by a misconception as to the cause, nature or extent of disability. Reynolds v. Justice Coal Co., 425 S.W.2d 750, 1968 Ky. LEXIS 438 ( Ky. 1968 ).

The failure of the employer to apprise the board at the outset of the fact within its knowledge that the claimant had other employment was such a mistake as would warrant reopening. Fayette County Board of Education v. Phillips, 439 S.W.2d 319, 1969 Ky. LEXIS 370 ( Ky. 1969 ).

Where a mistake occurred and was called to the attention of the Board by a motion to reopen, it was an abuse of discretion for the Board to fail to amend its award in conformity with the admitted facts in the circumstances presented. Fayette County Board of Education v. Phillips, 439 S.W.2d 319, 1969 Ky. LEXIS 370 ( Ky. 1969 ).

Where the mistake claimed by the claimant is simply that although he was totally disabled at the time of the settlement he did not realize that fact at that time, no mistake within the meaning of the law is established. Young v. Charles F. Trivette Coal Co., 459 S.W.2d 776, 1970 Ky. LEXIS 155 ( Ky. 1970 ).

Absent a showing of fraud in the original proceeding or a change of the condition of the claimant, the board was precluded from reopening and disturbing its previous award on the ground of mistake. Darnall v. Ziffrin Truck Lines, 484 S.W.2d 868, 1972 Ky. LEXIS 163 ( Ky. 1972 ).

Where the case was tried on its merits, an award was entered, and there was no appeal, “mistake” within the meaning of this section precluded the board from retrying the case so that the board had no authority to set aside its award and bring in the special fund. Yocom v. Milish, 497 S.W.2d 702, 1973 Ky. LEXIS 359 ( Ky. 1973 ).

Where claimant filed pneumoconiosis claim and later filed claim for back injury, which he had incurred earlier and for which he had received one year of total occupational disability benefits, and where he had prepared, but failed to properly file his claim form for the back injury, claimant was not prevented from filing under combined disability provision of this section as the issue of combined disability arose after pneumoconiosis claim was filed and under such circumstances the mistake provision in this section’s reopening paragraph was broad enough to allow for reopening of pneumoconiosis claim in order that a proper, combined award could be made. Jeep Trucking v. Howard, 891 S.W.2d 78, 1995 Ky. LEXIS 13 ( Ky. 1995 ).

It was proper for an administrative law judge to vacate an agreed order on the ground that it was a mistake to reduce a worker’s benefits without consideration, without acknowledgement by the worker, and without the ALJ’s informed approval. Cont'l Gen. Tire v. Looper, 211 S.W.3d 78, 2006 Ky. App. LEXIS 378 (Ky. Ct. App. 2006).

11. — — Newly Discovered Evidence.

Claim of newly discovered evidence tending to show employer’s name had been placed at head of compensation register without its authority and employee’s death had not occurred in the course and scope of his employment was not sufficient grounds under this section for a review of an award of compensation, since such parol evidence should, by ordinary prudence, have been produced at trial, and such facts presumably were then within the knowledge of the employer. Wagner Coal & Coke Co. v. Gray, 208 Ky. 152 , 270 S.W. 721, 1925 Ky. LEXIS 235 ( Ky. 1925 ).

The Circuit Court which has affirmed an award of compensation cannot grant a new trial on the ground of newly discovered evidence as to the employee’s physical condition. The proper procedure in such a case is for the employer to apply to the Workers’ Compensation Board under this section. Stearns Coal & Lumber Co. v. Roberts, 293 Ky. 75 , 168 S.W.2d 573, 1943 Ky. LEXIS 576 ( Ky. 1943 ).

Where the claimant had 15 months after he filed his claim to perfect his case before submitting it to the Board and could have had a lung biopsy performed and its results admitted in first hearing, but claimant waited until he received an adverse ruling and then made a motion for reconsideration and to hold the case in abeyance until he could have the biopsy and take the deposition of his doctor, the Board properly refused to reconsider the case. Crum v. Princess Coals, Inc., 453 S.W.2d 9, 1970 Ky. LEXIS 293 ( Ky. 1970 ).

Where defendant pursuing a workers’ compensation claim discovered new evidence, namely a new diagnosis by a new doctor, and defendant’s counsel was not notified by the doctor until seven weeks after administrative law judge’s decision, reliance by the full board on the administrative law judge’s findings in denying the motion to reopen the claim, was an egregious error and constituted manifest injustice. Durham v. Copley, 818 S.W.2d 610, 1991 Ky. LEXIS 163 ( Ky. 1991 ).

Workers’ compensation claimant was not entitled to a hearing on his motion to reopen his claim as (1) his post-award termination was “new evidence,” not newly-discovered evidence within the meaning of KRS 342.125(1)(b); and (2) “manifest injustice” or violation of public policy were not statutory grounds for reopening the claim. Summers v. U. S. Liquids, 2005 Ky. App. LEXIS 56 (Ky. Ct. App. Mar. 4, 2005), aff'd, 2005 Ky. Unpub. LEXIS 38 (Ky. Oct. 20, 2005).

“Newly-discovered evidence” within the meaning of KRS 342.125(1)(b) does not include new evidence, meaning evidence which did not come into being until after a workers’ compensation award was entered. New evidence cannot support a prima facie case for reopening pursuant to KRS 342.125(1)(b). Summers v. U. S. Liquids, 2005 Ky. App. LEXIS 56 (Ky. Ct. App. Mar. 4, 2005), aff'd, 2005 Ky. Unpub. LEXIS 38 (Ky. Oct. 20, 2005).

Evidence of an expert’s recantation based on a review of autopsy evidence, submitted more than one (1) year after a workers’ compensation award had become final, did not constitute a “mistake” sufficient to warrant re-opening of a claim under KRS 342.125(1)(c). In such situations, factual accuracy achieved only in hindsight had to give way to essential societal and institutional interests in reliable, final judgments. Bassham v. Russellville Warehousing, 2006 Ky. App. LEXIS 341 (Ky. Ct. App. Nov. 17, 2006), aff'd, 237 S.W.3d 197, 2007 Ky. LEXIS 204 ( Ky. 2007 ).

Where an employee and the employee’s widow were awarded workers’ compensation benefits based on a finding of manganese toxicity, but an autopsy report found evidence of Creutzfeldt-Jakob disease, an administrative law judge properly denied the employer’s motion to reopen because the report was not newly discovered evidence, and the post-award evidence that the finding was mistaken did not show a “mistake” within the meaning of the statute. Russellville Warehousing v. Bassham, 237 S.W.3d 197, 2007 Ky. LEXIS 204 ( Ky. 2007 ).

Workers’ compensation claimant was not entitled under KRS 342.125(1)(a)-(c) to reopen a claim that had been dismissed for failure to give timely notice of injury to the employer; the claimant’s diligence in locating a witness who allegedly overheard a conversation was questionable, and the new evidence was principally of an impeaching character. Turner v. Bluegrass Tire Co., 2009 Ky. App. LEXIS 166 (Ky. Ct. App. Sept. 11, 2009), aff'd, 331 S.W.3d 605, 2010 Ky. LEXIS 200 ( Ky. 2010 ).

Administrative law judge properly denied an employee’s motion to reopen his workers’ compensation hearing. The employee’s purported newly discovered evidence merely contradicted his supervisor’s testimony concerning the timeliness of notice of the injury, but it failed to show that the supervisor intentionally misrepresented the facts concerning notice. Turner v. Bluegrass Tire Co., 331 S.W.3d 605, 2010 Ky. LEXIS 200 ( Ky. 2010 ).

12. —Time of Review.

Employer’s application for review of compensation award on ground of mistake was not barred by statute of limitations, since such review is authorized “at any time” by this section. Beaver Dam Coal Co. v. Hocker, 202 Ky. 398 , 259 S.W. 1010, 1924 Ky. LEXIS 722 ( Ky. 1924 ).

The compensation board may, at any time within the compensable period, review an award or order upon the showing of a change of condition, mistake or fraud. Stewart v. Model Coal Co., 216 Ky. 742 , 288 S.W. 696, 1926 Ky. LEXIS 1003 ( Ky. 1926 ). See Black Star Coal Co. v. Powers, 252 Ky. 736 , 68 S.W.2d 30, 1934 Ky. LEXIS 845 ( Ky. 1934 ).

Application to reopen compensation case may be made at any time within period for which compensation is allowable notwithstanding expiration of original award. McIntosh v. John P. Gorman Coal Co., 253 Ky. 160 , 69 S.W.2d 7, 1934 Ky. LEXIS 621 ( Ky. 1934 ).

Application to Board to review award because of changed conditions, mistake, or fraud may be made at any time during the compensable period. Woodford Oil & Gas Co. v. Creech, 250 Ky. 307 , 62 S.W.2d 1031, 1933 Ky. LEXIS 679 ( Ky. 1933 ). See Clover Folk Coal Co. v. Scoggins, 263 Ky. 424 , 91 S.W.2d 543, 1936 Ky. LEXIS 124 ( Ky. 1936 ).

Review may be had at any time as long as it is within the period for which compensation has been allowed or the period which, under the new presentation of facts, is allowable or justified by the law. Hodgkin v. Webb, 310 Ky. 745 , 221 S.W.2d 664, 1949 Ky. LEXIS 1005 ( Ky. 1949 ).

The two-year waiting periods and the four-year limitation contained in subsection (3) govern the reopening of claims in which an award is entered on or after December 12, 1996; however, the four-year limitation contained in subsection (8) governs the reopening of claims decided prior to December 12, 1996. Meade v. Reedy Coal Co., 13 S.W.3d 619, 2000 Ky. LEXIS 33 ( Ky. 2000 ).

The exceptions to reopening established in subsections (1) and (3) permit the reopening of any claim, at any time, upon proof of the requisite facts without regard to any waiting periods established by the statute. Meade v. Reedy Coal Co., 13 S.W.3d 619, 2000 Ky. LEXIS 33 ( Ky. 2000 ).

The two (2) year limitation period provided for by the 1996 amendment to subsection (3) applied to an injury which occurred before the effective date of the amendment and did not constitute special legislation with regard to the regulation of labor, trade, mining, or manufacturing. Brooks v. University of Louisville Hosp., 33 S.W.3d 526, 2000 Ky. LEXIS 198 ( Ky. 2000 ).

Motion by workers’ compensation claimant to reopen an award was properly dismissed where the claimant filed his motion more than four (4) years after the effective date of the 1996 amendment to KRS 342.125(8), which limited the reopening of such an award to within four (4) years of the amendment’s effective date, December 12, 1996, and where the claimant’s injury and his award both occurred before the effective date of the amendment. Nygaard v. Goodin Bros., 107 S.W.3d 190, 2003 Ky. LEXIS 141 ( Ky. 2003 ).

Where the employer asserted that the employee could not recover workers’ compensation benefits for a neurogenic bladder condition because the employee failed to assert the claim within two (2) years of the date of last payment of temporary total disability benefits, the claim failed; the bladder condition, which did not manifest itself until several years after the original award, was an additional disability stemming from the original injury for which the two-year limitations period under KRS 342.185(1) was not applicable, the limitations period for the instant motion to reopen, decided after December 12, 1996, was four (4) years from December 12, 1996, according to KRS 342.125(8), and the instant motion to reopen, filed on August 21, 2000, was filed within four (4) years. Garrett Mining Co. v. Nye, 122 S.W.3d 513, 2003 Ky. LEXIS 231 ( Ky. 2003 ).

As an employer’s payment of voluntary temporary total disability benefits was not conduct that amounted to a false representation of a material fact, and it could not be said that the claimant lacked the means to acquire knowledge regarding the limitations period set out in KRS 342.125(8), there was no basis for applying the doctrine of equitable estoppel so as to deprive the employer of its limitations defense. Kendrick v. Toyota, 145 S.W.3d 422, 2004 Ky. App. LEXIS 269 (Ky. Ct. App. 2004).

Employer’s voluntary payment to a claimant of temporary total disability benefits post-award did not extend the four-year limitation on reopening a claim contained in KRS 342.125(3). Kendrick v. Toyota, 145 S.W.3d 422, 2004 Ky. App. LEXIS 269 (Ky. Ct. App. 2004).

Workers’ Compensation Board properly held that a claimant’s motion to reinstate temporary total disability benefits was untimely under KRS 342.125(3) where she had filed it more than four (4) years after the settlement of her workers’ compensation claim was approved. Hall v. Hospitality Res., Inc., 2007 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 12, 2007), rev'd, 276 S.W.3d 775, 2008 Ky. LEXIS 288 ( Ky. 2008 ).

Reference in KRS 342.125(3) to the original award or order granting or denying benefits refers to the original award and any subsequent order granting or denying benefits; a premature motion to reopen is barred by KRS 342.320 and KRS 342.310 , and CR 11, which deter frivolous motions. Hall v. Hospitality Res., Inc., 276 S.W.3d 775, 2008 Ky. LEXIS 288 ( Ky. 2008 ).

Where a workers’ compensation claimant had not reached maximum medical improvement when KRS 342.125(3) allegedly expired, the claimant’s motion to reopen was timely as the reference in KRS 342.125(3) to the original award or order granting or denying benefits referred to the original award and any subsequent order granting or denying benefits. Hall v. Hospitality Res., Inc., 276 S.W.3d 775, 2008 Ky. LEXIS 288 ( Ky. 2008 ).

Court of appeals properly affirmed the decisions of the Workers' Compensation Board and an ALJ that an employee was entitled to reopen her workplace injury claim because the employee's motion to reopen the order granting benefits was timely filed within the statutory four-year period and the employee's condition had worsened from partial disability to total disability between the dates of the original award and the filing of the second reopening. Toyota Motor Mfg. Ky. v. Prichard, 532 S.W.3d 633, 2017 Ky. LEXIS 452 ( Ky. 2017 ).

13. Motion or Application.

Where employer alleged in motion to reopen case before Board that employee had not been accidentally killed but had been murdered, statements contained in motion, for purpose of reopening case, must be taken as true. Allburn Coal Corp. v. Wilson, 222 Ky. 740 , 2 S.W.2d 365, 1928 Ky. LEXIS 224 ( Ky. 1928 ).

Failure of employee to denominate his basis for relief as a “mistake” rather than a “change of condition” is of no significance. Department of Finance v. Wright, 425 S.W.2d 740, 1968 Ky. LEXIS 434 ( Ky. 1968 ).

Where a motion to reopen an award was filed with the Board prior to entry of judgment in the Circuit Court enforcing the original award, the Circuit Court was without authority to enter the judgment while the motion was pending. Armour & Co. v. Hardin, 432 S.W.2d 38, 1968 Ky. LEXIS 315 ( Ky. 1968 ).

Where the motion to reopen was supported by uncontroverted medical evidentiary material reflecting a change of condition, the Board was required to regard those uncontroverted allegations as true. Ratliff v. Harris Bros. Constr. Co., 441 S.W.2d 127, 1969 Ky. LEXIS 292 ( Ky. 1969 ).

A reopening of an award on the ground of mistake is not barred by the fact that the motion to reopen was based upon change of condition. Young v. Charles F. Trivette Coal Co., 459 S.W.2d 776, 1970 Ky. LEXIS 155 ( Ky. 1970 ); Charles F. Trivette Coal Co. v. Hampton, 509 S.W.2d 280, 1974 Ky. LEXIS 564 ( Ky. 1974 ).

A claimant was not denied his constitutional rights under Article I, § 10 of the United States Constitution or §§ 13, 19, or 242 of the Kentucky Constitution when he was not allowed to reopen an original workers’ compensation award within two (2) years of entry, notwithstanding that KRS 342.125 , as it existed on the date of his injury, would have allowed such reopening, since reopening is a remedy for an increase in disability that occurs after an award is entered and any right that a worker has to be compensated for a post-award increase in disability is inchoate until such time as he sustains a post-award change of occupational disability, at which point the right becomes vested. McCool v. Martin Nursery & Landscaping, Inc., 43 S.W.3d 256, 2001 Ky. LEXIS 60 ( Ky. 2001 ).

14. —Standing.

The Board may, within the limit prescribed by the compensation law, review its award, but the application for review must be made by some party to it, or by some beneficiary entitled to compensation or benefits under that particular character of award. Johnson v. J. P. Taylor Co., 211 Ky. 821 , 278 S.W. 169, 1925 Ky. LEXIS 976 ( Ky. 1925 ).

Application to review award must be made by a party to it or someone in privity with such party. McIntosh v. John P. Gorman Coal Co., 253 Ky. 160 , 69 S.W.2d 7, 1934 Ky. LEXIS 621 ( Ky. 1934 ).

Where mother and her infant children were neither parties to widow’s award nor in privity with widow, application by such mother and infants more than three (3) years after death of deceased was original application as to them, and their claim was therefore barred by statute of limitations. McIntosh v. John P. Gorman Coal Co., 253 Ky. 160 , 69 S.W.2d 7, 1934 Ky. LEXIS 621 ( Ky. 1934 ).

Attorney did not have standing to file a motion to reopen a workers’ compensation case to recover attorney fees because the attorney was never a party to the underlying claim of the attorney’s former client. Ashlock v. Commonwealth, 2014 Ky. App. LEXIS 52 (Ky. Ct. App. Mar. 21, 2014), aff'd, 2015 Ky. Unpub. LEXIS 6 (Ky. Feb. 19, 2015).

15. — Time Limitations.

Workers’ compensation benefit claimant’s motion to reopen his benefit award to seek temporary total disability (TTD) payments regarding post-award back surgery was not untimely because, contrary to the employer’s assertions, the version of KRS 342.125(3) in place when the claimant filed his motion to reopen was applicable to his claim. Officeware v. Jackson, 247 S.W.3d 887, 2008 Ky. LEXIS 60 ( Ky. 2008 ).

16. Notice.

Although the Compensation Board has authority to review its awards and orders, it can do so only upon notice to the parties affected and, where the Board approved an agreement of the employer and employee for compensation entered into while a motion to reopen the case was pending, its subsequent order fixing compensation without giving notice thereof to the employer was erroneous and without authority. Sawyers v. Lena Rue Coal Co., 217 Ky. 500 , 289 S.W. 1107, 1927 Ky. LEXIS 6 ( Ky. 1927 ).

An employee was not required to give notice as required by KRS 342.185 to the employer before filing a claim for reopening. GE v. Turpen, 245 S.W.3d 781, 2006 Ky. App. LEXIS 379 (Ky. Ct. App. 2006).

17. Parties.

Where special fund was not party to original compensation agreement but motion to reopen was granted based on change in extent of disability, the fund was properly made a party to such proceeding. Yocom v. Helm, 562 S.W.2d 97, 1978 Ky. App. LEXIS 468 (Ky. Ct. App. 1978).

Where, prior to entering into a settlement agreement, the employee had no opportunity to make the special fund a party, as the agreement and award were for temporary total disability, but once the employee discovered the true nature and extent of his disability, he sought to make the special fund a party at his first opportunity to do so, and where there was no evidence that either party withheld any information from the other, the Board correctly reopened the award, made the special fund a party, and apportioned the award. American Standard, Inc. v. Stephen, 565 S.W.2d 158, 1978 Ky. App. LEXIS 505 (Ky. Ct. App. 1978).

The special fund cannot be made a party in reopenings where it was not a party to the original litigation between the employer and the employee. Wells v. Cotton, 650 S.W.2d 266, 1983 Ky. App. LEXIS 288 (Ky. Ct. App. 1983).

KRS 342.120 permits the special fund to be brought into the case only by a party during pendency of the action or by the Board prior to rendition of the final award; neither the Board nor a party is given express statutory authority to make the fund a party after the award is rendered. Wells v. Cotton, 650 S.W.2d 266, 1983 Ky. App. LEXIS 288 (Ky. Ct. App. 1983).

The Workers’ Compensation Board was without authority to join the Uninsured Employers’ Fund as a party and remand the case with directions to vacate the original award and relegate worker’s claim on the ground of claimant’s “mistake” in failing to join the fund in the original proceeding. Uninsured Employers' Fund v. Fox, 862 S.W.2d 902, 1993 Ky. App. LEXIS 130 (Ky. Ct. App. 1993).

On a motion to reopen a claim for coal workers’ pneumoconiosis which had been settled with the employer and litigated against the Special Fund, the claimant was not required to seek benefits at reopening from the employer as well as from the Special Fund as the employer’s liability was extinguished upon payment of the lump sum settlement. Whittaker v. Pollard, 25 S.W.3d 466, 2000 Ky. LEXIS 97 ( Ky. 2000 ).

18. Issues and Evidence Considered.

Reconsideration for purpose of modifying award constitutes continuation of original proceeding and, as such, Board has duty to consider evidence offered in connection with proof received at time award was made and intervening investigations. Standard Acci. Ins. Co. v. Hinson, 251 Ky. 287 , 64 S.W.2d 574, 1933 Ky. LEXIS 836 ( Ky. 1933 ).

Compensation Board, in its hearing of reopened case, was authorized to find that claimant’s new condition of total disability was not result of or connected with or contributed to by his previous compensated injury, and was not limited to single issue of worsening or change in claimant’s condition of disability. University of Kentucky v. Combs, 261 Ky. 833 , 88 S.W.2d 981, 1935 Ky. LEXIS 749 ( Ky. 1935 ).

Where, on motion by employee for reopening of case on ground of change of condition, the only showing that alleged change of condition was result of original accident consisted of affidavit of physician who had not treated employee and whose diagnosis was based solely on subjective symptoms, which affidavit stated that employee had a permanent injury but did not state that the injury was due to the accident, the compensation board was justified in considering original record in the case, which showed that only physician who had treated employee had found no permanent injury; and Board’s decision not to reopen case, based on conclusion that present condition of employee was not due to original accident, was a proper exercise of discretion not reversible by Circuit Court. W. E. Caldwell Co. v. Borders, 301 Ky. 843 , 193 S.W.2d 453, 1946 Ky. LEXIS 586 ( Ky. 1946 ).

Where the Workers’ Compensation Board reopened a previous award in which an employee was suffering from bursitis of the right elbow as a result of an accident, and the injured elbow continued to grow worse, the Board should consider the nature of the injury, the age of the worker, and other considerations such as the character of her present employment and the uncertainty of future employment opportunities. Winn Dixie Louisville, Inc. v. Watson, 473 S.W.2d 148, 1971 Ky. LEXIS 156 ( Ky. 1971 ).

Since making the special fund a party and considering apportionment of an award is an issue that can be raised or considered upon an original application for benefits, then that issue can be considered in a proceeding to reopen a claim. American Standard, Inc. v. Stephen, 565 S.W.2d 158, 1978 Ky. App. LEXIS 505 (Ky. Ct. App. 1978).

When a claimant seeks an increase in compensation because of a change in occupational disability in a reopening proceeding, he or she must prove by competent evidence that a significant change in occupational disability in fact exists, and that the disability is the result of the injury or disease which was the subject of the original award; therefore, claimant’s motion and affidavit did constitute a prima facie showing for reopening, by stating his unsuccessful attempts at obtaining employment at 18 different coal companies and by stating which employers had hired less experienced applicants than he, which fact claimant attributed to the total loss of vision in his right eye. Peabody Coal Co. v. Gossett, 819 S.W.2d 33, 1991 Ky. LEXIS 180 ( Ky. 1991 ).

The plain language of former subsection (2)(a) required a prima facie showing of both a progression of the disease and either the development or the progression of a respiratory impairment in order for a worker to prevail on a motion to reopen a retraining incentive benefits award. Neace v. Adena Processing, 7 S.W.3d 382, 1999 Ky. App. LEXIS 142 (Ky. Ct. App. 1999).

The Workers’ Compensation Board was authorized to determine that an award which was entered at reopening did not conform to Chapter 342, regardless of whether the particular error in applying the law which caused the board to reach that conclusion was contested by a party and regardless of whether the initial award was appealed on a different ground. Whittaker v. Reeder, 30 S.W.3d 138, 2000 Ky. LEXIS 137 ( Ky. 2000 ).

Where a workers’ compensation claim arose and was settled prior to the 1996 amendments to KRS 342.125 , the date of the injury controlled which version of KRS 342.125 , the pre- or post-1996 amendment version, governed the evidentiary standard on a motion to reopen; as the employee was injured prior to the 1996 amendments, the pre-amendment version of the statute was properly applied to the employee’s motion to reopen. Richie Pharmacal Co. v. Dunn, 2004 Ky. App. LEXIS 61 (Ky. Ct. App. Mar. 12, 2004), aff'd, 2005 Ky. Unpub. LEXIS 136 (Ky. Mar. 17, 2005).

Workers’ compensation board improperly granted a claimant’s request for temporary total disability (TTD) benefits, which were sought during the employer’s motion to reopen to contest its liability for surgery after a final award had been entered under KRS 342.305 , because the employer’s reopening under KRS 342.125(4) and KRS 342.020 did not encompass the TTD issue. Bartee v. Univ. Med. Ctr., 244 S.W.3d 91, 2008 Ky. LEXIS 18 ( Ky. 2008 ).

Employee pursuing workers’ compensation benefits did not waive the right to address in the employee’s motion to reopen a thoracic spine injury claim that the fund asserted the employee had not raised in the original application for benefits. Under KRS 342.125(7), the application of res judicata and collateral estoppel was prohibited on a motion to reopen a workers’ compensation award, which meant the employee could not be barred from raising that issue even if the employee had not raised it previously. Commonwealth v. Allen, 2013 Ky. Unpub. LEXIS 70 (Ky. Apr. 25, 2013), modified, 2013 Ky. LEXIS 475 (Ky. Aug. 29, 2013).

19. Burden of Proof.

One who claims change in conditions upon which compensation award rests has burden of sustaining his charge. Standard Acci. Ins. Co. v. Hinson, 251 Ky. 287 , 64 S.W.2d 574, 1933 Ky. LEXIS 836 ( Ky. 1933 ).

Upon reopening of claimant’s case for alleged change of condition, for increase in compensation, claimant had burden of proving by preponderance of evidence that his disease was direct result of his traumatic accidental injury or acceleration of preexisting disease caused thereby. University of Kentucky v. Combs, 261 Ky. 833 , 88 S.W.2d 981, 1935 Ky. LEXIS 749 ( Ky. 1935 ).

Where employer petitioned for rehearing on ground that employee’s condition had changed, such employee had burden of proving there was such change as to warrant modification, since original finding and award were in nature of final judgment. Department of Highways v. Harrell, 291 Ky. 90 , 163 S.W.2d 287, 1942 Ky. LEXIS 186 ( Ky. 1942 ).

The burden of proof is upon the one moving for a reopening of a compensation award. W. E. Caldwell Co. v. Borders, 301 Ky. 843 , 193 S.W.2d 453, 1946 Ky. LEXIS 586 ( Ky. 1946 ).

Employee filing application for reopening of case in which Compensation Board had approved settlement agreement between employer and employee had burden of proving not only a change in condition but also that such change was a direct and proximate result of the injury. W. E. Caldwell Co. v. Borders, 301 Ky. 843 , 193 S.W.2d 453, 1946 Ky. LEXIS 586 ( Ky. 1946 ).

One moving for a reopening of a compensation award has the burden of proving that the change of condition was a direct and proximate result of the injury. Jude v. Cubbage, 251 S.W.2d 584, 1952 Ky. LEXIS 929 ( Ky. 1952 ).

The party seeking to increase an award has the burden of proving that there has been a change of condition resulting from the original compensable injury. Griffith v. Blair, 430 S.W.2d 337, 1968 Ky. LEXIS 402 ( Ky. 1968 ).

An award may be reopened upon a showing of a change in occupational disability which may be supported by evidence of both physical changes and economic changes, when those economic changes are not brought on by the willful intent of the employee nor by mere changes in economic conditions such as a recession or plant closing, and thus, a change in claimant’s ability to get or hold employment, or to maintain his earlier earning level, could logically be considered a change in occupational disability even though claimant’s physical condition may have remained unchanged; however, the claimant moving for reopening has the burden of showing that the decrease of wage-earning capacity, whether the result of physical deterioration or subsequent unemployability without a physical change, is due to the effects of the injury in order for an award to be increased. Peabody Coal Co. v. Gossett, 819 S.W.2d 33, 1991 Ky. LEXIS 180 ( Ky. 1991 ).

When the merits of a reopening of a workers’ compensation award are considered, the burden is on the claimant to show that the claimant sustained a post-award increase in occupational disability due to the effects of the claimant’s work injury. Brian House v. BJK Indus., 103 S.W.3d 13, 2003 Ky. LEXIS 74 ( Ky. 2003 ).

Worker failed to carry his burden of proving that he was entitled to a finding of a greater disability than that of having a permanent, partial disability of 13 percent with a 2-multiplier, as was found by the Administrative Law Judge (ALJ), after the worker was injured lifting a patient while working as a nursing assistant, because the ALJ’s decision, which relied upon the independent medical exam of a neurosurgeon, that the worker could return to medium duty work based on the lack of post-surgical neurological findings was not so unreasonable that it was erroneous as a matter of law, particularly considering the worker’s age and his trainability for different work. Adams v. NHC Healthcare, 2005 Ky. App. LEXIS 205 (Ky. Ct. App.), sub. op., 2005 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. Sept. 23, 2005), aff'd, 199 S.W.3d 163, 2006 Ky. LEXIS 201 ( Ky. 2006 ).

20. Discretion of Board.

The Compensation Board was empowered by this section to review its award upon a proper showing upon application of interested party, and the Court of Appeals had no power to mandamus the Board to apportion an award upon evidence already before it. Maynard v. Workmen's Compensation Board, 210 Ky. 708 , 276 S.W. 812, 1925 Ky. LEXIS 759 ( Ky. 1925 ).

This section vests the compensation board with some legal discretion but not arbitrary power and, where affidavits showed that finding was either a mistake or that employee’s condition had changed, it was an abuse of discretion for the Board to refuse to reopen the case. Gorenz v. United States Coal & Coke Co., 212 Ky. 344 , 279 S.W. 343, 1926 Ky. LEXIS 140 ( Ky. 1926 ).

The language of this section clearly confers power upon the Board, when making a whole board review of a previous award, to end, diminish, or increase the compensation so previously awarded upon its discovery of any change of condition, mistake, or fraud made therein. Consolidation Coal Co.'s Receivers v. Patrick, 254 Ky. 671 , 72 S.W.2d 51, 1934 Ky. LEXIS 135 ( Ky. 1934 ).

The Board is the sole judge of right to reopen claim and may exercise its discretion. Edgemont Fuel Co. v. Patton, 256 Ky. 538 , 76 S.W.2d 284, 1934 Ky. LEXIS 434 ( Ky. 1934 ), overruled in part, Low Moisture Coal Co. v. Vandiver, 260 S.W.2d 395, 1953 Ky. LEXIS 972 ( Ky. 1953 ). But see Low Moisture Coal Co. v. Vandiver, 260 S.W.2d 395, 1953 Ky. LEXIS 972 ( Ky. 1953 ).

The Board may properly examine the entire record in considering a motion to reopen and is vested with a sound discretion in ruling upon such motion. Ratliff v. Harris Bros. Constr. Co., 441 S.W.2d 127, 1969 Ky. LEXIS 292 ( Ky. 1969 ).

21. Res Judicata.

An employee who filed a motion to review an award under this section on the ground of mistake but who failed to file an affidavit in support thereof and, upon his motion being denied, failed to appeal within the time allowed could not file a second motion to reopen. Kentucky Wagon Mfg. Co. v. Esters, 221 Ky. 63 , 297 S.W. 811, 1927 Ky. LEXIS 651 ( Ky. 1927 ).

Where claimant moved to reopen compensation case and motion was denied by Compensation Board after hearing on merits, it was error to overrule employer’s defense of res judicata when claimant again moved to reopen on same facts and evidence as before. Happy Coal Co. v. Hartbarger, 251 Ky. 779 , 65 S.W.2d 977, 1933 Ky. LEXIS 940 ( Ky. 1933 ).

Where claimant makes a motion to reopen which Board overrules on purely procedural grounds, second such motion cannot be overruled on grounds it is successive motion on same grounds and showing as before, since merits of claimant’s motion are still to be heard by Board. Byrne & Speed Coal Corp. v. Dodson, 263 Ky. 848 , 94 S.W.2d 24, 1936 Ky. LEXIS 262 ( Ky. 1936 ).

Once an appeal has been made to and passed upon by the courts, there can be no reopening of the case under this section on a ground passed upon by the courts. Lincoln Coal Co. v. Watts, 275 Ky. 130 , 120 S.W.2d 1026, 1938 Ky. LEXIS 381 ( Ky. 1938 ).

The doctrine of res judicata applies to the rulings of the Workers’ Compensation Board the same as it does to decisions of a court. Hysteam Coal Corp. v. Ingram, 283 Ky. 411 , 141 S.W.2d 570, 1940 Ky. LEXIS 346 ( Ky. 1940 ).

Where claimant moved to reopen compensation case and there was hearing on merits and denial, claimant’s subsequent motion to reopen, on same grounds as first, was granted in error, since first hearing and denial thereon became res judicata. Hysteam Coal Corp. v. Ingram, 283 Ky. 411 , 141 S.W.2d 570, 1940 Ky. LEXIS 346 ( Ky. 1940 ).

Res judicata has no application where there was not an examination of the merits of the claim upon the first motion but only an adjudication of a technical insufficiency. Clear Fork Coal Co. v. Gaylor, 286 S.W.2d 519, 1956 Ky. LEXIS 415 ( Ky. 1956 ).

Where employee’s claim was dismissed and no appeal was taken, the order became res judicata and could not be reopened on question of medical expenses. Beth-Elkhorn Corp. v. McFall, 415 S.W.2d 857, 1967 Ky. LEXIS 344 ( Ky. 1967 ).

Where, in a workers’ compensation case, the claimant was denied recovery for an attendant injury to her nervous system and that decision was affirmed by the court on appeal, the matter was not res judicata as to a reopening for presentation of evidence showing a substantial change of condition after the date of the original award. Mayes v. Potter & Brumfield, Inc., 427 S.W.2d 567, 1968 Ky. LEXIS 677 ( Ky. 1968 ).

A claimant may not succeed in a second motion to reopen based on the same facts alleged in support of a former motion to reopen. Ratliff v. Harris Bros. Constr. Co., 441 S.W.2d 127, 1969 Ky. LEXIS 292 ( Ky. 1969 ).

Since this section expressly provided for reopening under specified conditions, the rule of res judicata had no application when the prescribed conditions were present. Stambaugh v. Cedar Creek Mining Co., 488 S.W.2d 681, 1972 Ky. LEXIS 47 ( Ky. 1972 ).

Where Worker’s Compensation Board dismissed a claim on the motion of the employer and the special fund, the Board had no jurisdiction to subsequently grant an award to the claimant. Raney v. Hall, 506 S.W.2d 510, 1974 Ky. LEXIS 755 ( Ky. 1974 ).

When, in first reopening, claimant asserted and it was judicially determined that he was permanently and totally disabled at the time of the original award, he could not, in a subsequent reopening, assert that he was only partially disabled at the time of the original award. Charles F. Trivette Coal Co. v. Hampton, 509 S.W.2d 280, 1974 Ky. LEXIS 564 ( Ky. 1974 ).

While successive motions to reopen may be filed, this does not permit the relitigation, in a successive reopening proceeding, of an ultimate fact actually litigated and determined in the first reopening proceeding when such determination was essential to the decision of whether relief should be granted. Charles F. Trivette Coal Co. v. Hampton, 509 S.W.2d 280, 1974 Ky. LEXIS 564 ( Ky. 1974 ).

A doctrine of finality has been adopted in workers’ compensation cases, so that the award of the Board once final may only be reopened upon a showing that the Board misapplied the law as it was when the award was made, and subsequent interpretations of the law will not warrant the reopening of awards made final under the doctrine of res judicata. Keefe v. O. K. Precision Tool & Die Co., 566 S.W.2d 804, 1978 Ky. App. LEXIS 535 (Ky. Ct. App. 1978).

While a final award of compensation benefits has the same finality as a court judgment, this section provides some relief from the finality of judgments in workers’ compensation cases and allows a claim to be re-opened after the award is final under specified circumstances, however, it is critical to note that a re-opening under subsection (3) of this section treats awards pursuant to approved settlements differently from re-opening awards made pursuant to fully litigated claims. The use of res judicata by Parson v. Union Underwear Co., 758 S.W.2d 43, 1988 Ky. App. LEXIS 71 (Ky. Ct. App. 1988), overruled, Beale v. Faultless Hardware, 837 S.W.2d 893, 1992 Ky. LEXIS 128 ( Ky. 1992 ), overruled, Deale v. Faultless Hardware ( Ky. 1992 ).

Where the employee suffered workers’ compensation injuries in 1990 and 1994 affecting the same bodily functions while working for two (2) different employers, and the administrative law judge previously found that 22 percent of the employee’s disability from the 1994 injury was pre-existing from the 1990 injury and noncompensable, under KRS 342.125 (7), that finding was res judicata to that issue where the case was reopened pursuant to KRS 342.125 . Garrett Mining Co. v. Nye, 122 S.W.3d 513, 2003 Ky. LEXIS 231 ( Ky. 2003 ).

22. Modification of Award.

The award may be shown to be in error or subject to being credited with payments previously made. Heaston v. Berndsen-Jones, Inc., 438 S.W.2d 795, 1969 Ky. LEXIS 421 ( Ky. 1969 ).

The pervading policy is that awards may be changed in light of circumstances warranting such changes, but awards may not be modified capriciously or whimsically. Fayette County Board of Education v. Phillips, 439 S.W.2d 319, 1969 Ky. LEXIS 370 ( Ky. 1969 ).

Although the award made by the board was conservative, there was substantial evidence to support it and the Circuit Court could therefore not disturb it. Floyd County Board of Education v. Jacobs, 451 S.W.2d 405, 1970 Ky. LEXIS 389 ( Ky. 1970 ).

Where claimant has been awarded a Retraining Incentive Benefit (RIB) and subsequently is entitled to receive a higher level of benefits pursuant to KRS 342.732 , the subsequent award of income benefits is reduced by the amount of the RIB which has been received under this section. In other words, a worker may not receive both a RIB benefit and the full income benefit for which he would otherwise be entitled by virtue of his occupational disability. Helton v. Canada Mountain Coal Augering, 892 S.W.2d 588, 1995 Ky. LEXIS 30 ( Ky. 1995 ).

As a workers’ compensation claimant’s injury and award both occurred before December 12, 1996, his subsequent motion to reopen was granted, and the merits of his assertion that he was entitled to additional benefits were properly decided under the Osborne v. Johnson standard; the claimant’s increased award was not unreasonable and was properly affirmed on appeal as, although there was conflicting medical evidence, there was evidence that the claimant’s back injury was more disabling than it had been at the time of the initial award and considering the claimant’s age, education, work experience, and the credibility of his testimony, and the restrictions imposed by a physician, the claimant was totally disabled. Dingo Coal Co. v. Tolliver, 129 S.W.3d 367, 2004 Ky. LEXIS 75 ( Ky. 2004 ).

Because KRS 342.125(1)(d) requires only a “worsening of impairment,” a worker seeking a reopening of a prior award was not required to prove a greater permanent impairment rating in order to receive permanent total disability benefits; KRS 342.730(1)(a) and KRS 342.0011(11)(c) required a claimant who was partially disabled at the time of the initial award and totally disabled at reopening to show only that a worsening of impairment due to the injury was permanent and caused the claimant to be totally disabled. Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 2006 Ky. LEXIS 297 ( Ky. 2006 ).

Under KRS 342.125(3), the employee’s motion to reopen seeking temporary total disability (TTD) benefits was timely because the period of medical benefits had not expired; the legislature did not intend to limit time for seeking TTD to the period that income benefits were awarded, and the employee was entitled to surgery for the effects of his injury. Radco Asbestos Specialists, Inc. v. Lyons, 295 S.W.3d 75, 2009 Ky. LEXIS 187 ( Ky. 2009 ).

In a workers’ compensation action, KRS 342.125(1) permitted an administrative law judge (ALJ) to reopen a final award in order to prevent an insurer from benefiting from its constructive fraud on the tribunal; the insurer’s litigation strategy worked to discourage widows from filing Tennessee claims against the insurer until such time as the election of remedies doctrine barred them from doing so and deceived the ALJ. Zurich Am. Ins. Co. v. Journey Operating, LLC, 323 S.W.3d 696, 2010 Ky. LEXIS 261 ( Ky. 2010 ).

23. — Reduction.

The mere fact that an employee is able to do and does perform light work does not justify a reduction in an award for total and permanent disability. Blue Diamond Coal Co. v. Phillips, 303 Ky. 693 , 198 S.W.2d 799, 1946 Ky. LEXIS 922 ( Ky. 1946 ).

Where positive evidence of the extent of claimant’s occupational disability, not available when the original claim was heard, subsequently became available and such evidence clearly established that claimant’s disability was not total, the board properly reduced the award. Mitsch v. Stauffer Chemical Co., 487 S.W.2d 938, 1972 Ky. LEXIS 95 ( Ky. 1972 ).

Although the employer was not successful in challenging the Board’s determination, and the appellate court’s affirmance of that determination, that the employee was entitled to an award of future medical expenses benefits after the employee injured the employee’s shoulder but seemed to have healed after surgery, that did not mean the employer was entirely without recourse. Indeed, the employer was allowed under KRS 342.125(3) to dispute the compensability of future treatment that was unreasonable, unnecessary, or unrelated to the injury, and KRS 342.310(1) permitted either the employee or the employer to be sanctioned for prosecuting or defending a benefits dispute unreasonably. Kroger v. Ligon, 338 S.W.3d 269, 2011 Ky. LEXIS 68 ( Ky. 2011 ).

24. — Retroactivity.

The Board may, at any time within the compensable period, review its award but cannot, on review, give to its award any retroactive effect. Rex Coal Co. v. Campbell, 213 Ky. 636 , 281 S.W. 1039, 1926 Ky. LEXIS 586 ( Ky. 1926 ).

In determining compensable period when compensation award is reopened, new award period may be retroactive to date of injury less such period of time in which payments were made under previous awards. Wallins Creek Collieries Co. v. Jones, 214 Ky. 775 , 283 S.W. 1067, 1926 Ky. LEXIS 420 ( Ky. 1926 ). But see Lincoln Coal Co. v. Watts, 275 Ky. 130 , 120 S.W.2d 1026, 1938 Ky. LEXIS 381 ( Ky. 1938 ).

Where claimant received compensation and final settlement for injury, then had case reopened because of change in his condition, it was error for Compensation Board to make new, increased award retroactive to date of injury less amount already paid claimant. Lincoln Coal Co. v. Watts, 275 Ky. 130 , 120 S.W.2d 1026, 1938 Ky. LEXIS 381 ( Ky. 1938 ). But see Wallins Creek Collieries Co. v. Jones, 214 Ky. 775 , 283 S.W. 1067, 1926 Ky. LEXIS 420 ( Ky. 1926 ).

This section forbids any interference with or alteration of installments already accrued and paid, and any change made in an award must operate only as to future payments. Harrison v. Tierney Mining Co., 276 Ky. 637 , 124 S.W.2d 757, 1938 Ky. LEXIS 559 ( Ky. 1938 ).

Any change in the award made under review will have only a prospective effect. Schaab v. Irwin, 298 Ky. 626 , 183 S.W.2d 814, 1944 Ky. LEXIS 971 ( Ky. 1944 ).

A new award in a compensation case shall not be retroactive so as to affect a previous award as to any sums already paid thereunder. Hayden v. Elkhorn Coal Corp., 238 S.W.2d 138, 1951 Ky. LEXIS 801 ( Ky. 1951 ).

This section forbids a retroactive effect to any new award only so far as it affects any sums already paid under the previous award. Anderson v. Whitaker, 247 S.W.2d 980, 1952 Ky. LEXIS 727 ( Ky. 1952 ).

The only amounts that cannot be disturbed by the Board under a reopening order are amounts previously paid under the award and not amounts that are past due but unpaid. Scheurich & Fritz Roofing Co. v. De Witt, 424 S.W.2d 390, 1968 Ky. LEXIS 451 ( Ky. 1968 ).

A new award based on a misconception as to the cause, nature or extent of disability is not retroactive to the beginning of the compensable period. Reynolds v. Justice Coal Co., 425 S.W.2d 750, 1968 Ky. LEXIS 438 ( Ky. 1968 ).

It was error to back-date an award to time of injury when the increased award was based upon a change in condition. Swift & Co. v. Blades, 502 S.W.2d 513, 1973 Ky. LEXIS 72 ( Ky. 1973 ).

Because KRS 342.125 did not permit a retroactive award of temporary total disability benefits, the Workers’ Compensation Board lacked jurisdiction to consider a worker’s claim and the worker was entitled to benefits only from the date a motion to reopen was filed specifically requesting the benefits. Bartee v. Univ. Med. Ctr., 2006 Ky. App. LEXIS 391 (Ky. Ct. App. Dec. 22, 2006), aff'd, 244 S.W.3d 91, 2008 Ky. LEXIS 18 ( Ky. 2008 ).

25. — — Interest.

Where injured employee, after having agreed to and received one award of compensation, obtained reopening of case and was given an additional award which was retroactive to date of cessation of payments under original award, interest should not have been allowed on past-due payments except those from date of motion to reopen case. Williams v. Gordon, 313 Ky. 377 , 231 S.W.2d 89, 1950 Ky. LEXIS 895 ( Ky. 1950 ).

26. —Credit to Employer.

On reopening of case, employer was entitled to credit on award for amount previously paid. Louisville Milling Co. v. Turner, 209 Ky. 515 , 273 S.W. 83, 1925 Ky. LEXIS 532 ( Ky. 1925 ).

In granting additional award, after vacating earlier approved settlement pursuant to which payments had been made to employee, it was proper to direct that future payments should be credited with amounts theretofore paid. Crummies Creek Coal Co. v. Hensley, 284 Ky. 243 , 144 S.W.2d 206, 1940 Ky. LEXIS 461 ( Ky. 1940 ).

Where award for total disability was made after an award for partial disability, the number of weeks paid for partial disability should be deducted from the award for permanent disability and not merely the amount previously paid. Department of Finance v. Wright, 425 S.W.2d 740, 1968 Ky. LEXIS 434 ( Ky. 1968 ).

A dollar-for-dollar credit for voluntary payments made by an employer to a disabled worker in excess of the compensation found to be due would seem to frustrate the purpose of the compensation act that periodic payments over a statutorily set period be made, absent agreement by the parties and approval by the board. By allowing full credit, the claimant could be deprived of many future periodic payments; for this reason, each weekly voluntary payment should be credited against each weekly workers’ compensation payment due, to the extent that the weekly voluntary payment does not exceed the weekly compensation payment. General Electric Co. v. Morris, 670 S.W.2d 854, 1984 Ky. LEXIS 237 ( Ky. 1984 ).

Based upon the plain language of subsection (1) of this section, the Workers’ Compensation Board, pursuant to a motion to reopen, cannot properly order the Special Fund to reimburse an injured worker’s employer for a portion of a lump sum settlement previously paid the employee by the employer in full at a time when the Special Fund was not a party to the negotiations, and no initial application for adjustment of claim had been filed. Wells v. Baker, 713 S.W.2d 476, 1986 Ky. App. LEXIS 1134 (Ky. Ct. App. 1986).

The workers’ compensation award received by the employee could not be reduced by the amount of the supplemental payments received from the employer when the employee ceased working, where the supplemental payments were in no way related to employment disability, and his cessation of work was not due to any known disability. Johnson v. Scotts Branch Coal Co., 754 S.W.2d 555, 1988 Ky. App. LEXIS 97 (Ky. Ct. App. 1988).

Employer was not entitled to credit against the workers’ compensation award for monthly disability benefits it paid to employee from a disability pension plan, which employer fully funded for its employees. Eastern Coal Corp. v. Mullins, 845 S.W.2d 27, 1993 Ky. App. LEXIS 4 (Ky. Ct. App. 1993).

Because the disability retirement benefit was part of claimant’s overall employment compensation package with his employer as provided by claimant’s collective bargaining agreement through his union and was not a result of the employer’s generosity or largess in providing the disability benefit, there was no substantial evidence to support the ALJ’s award of a credit to the employer for payments previously made to claimant under the disability retirement plan. GAF Corp. v. Barnes, 906 S.W.2d 353, 1995 Ky. LEXIS 110 ( Ky. 1995 ).

Whether an employer is entitled to a credit against its workers’ compensation liability for benefits paid pursuant to a disability benefit plan depends upon all relevant factors including unilateral funding of the plan by the employer, the duration and conditions of coverage under the plan, and whether the plan contains its own internal off-set provisions. The fundamental question is whether the plan fulfills the same purpose as workers’ compensation, if so, then a credit is proper in order to avoid a duplication of benefits. GAF Corp. v. Barnes, 906 S.W.2d 353, 1995 Ky. LEXIS 110 ( Ky. 1995 ).

Workers’ Compensation Board did not err affirming an administrative law judge (ALJ) because the ALJ properly calculated the employer’s credit based on the actual award to which an employee was entitled at the time of settlement rather than on the amount paid by the settlement where the employee suffered a worsening of a work-related injury sustained when a horse she was riding fell and rolled over her and she was no longer able to work as an exercise rider. Gardens Glen Farm v. Balderas, 2014 Ky. App. LEXIS 110 (Ky. Ct. App. June 20, 2014), aff'd, 461 S.W.3d 398, 2015 Ky. LEXIS 1618 ( Ky. 2015 ).

ALJ did not err in calculating the credit owed to the employer where the findings that the rating used for the original settlement award accurately reflected the original occupational disability and that the original return to work factor should have been one instead of the rate used in the settlement were supported by the record. Gardens Glen Farm v. Balderas, 461 S.W.3d 398, 2015 Ky. LEXIS 1618 ( Ky. 2015 ).

27. — Attorney's Fee.

A contingency arising under this section which results in increasing or decreasing an award shall not deprive the attorney who performed the services required of the fee to which he is entitled by law. Jerry's Drive In, Inc. v. Young, 335 S.W.2d 321, 1960 Ky. LEXIS 247 ( Ky. 1960 ).

28. Disputation of Medical Bills.

In the future, when an employer seeks to dispute a medical or drug bill submitted by the disabled worker, the procedure to be followed is for the employer to file a motion before the Workers’ Compensation Board to reopen the award for medical expenses under this section. Westvaco Corp. v. Fondaw, 698 S.W.2d 837, 1985 Ky. LEXIS 282 ( Ky. 1985 ).

29. Impermissible Relitigation.

An agreed settlement of a prior workers’ compensation claim is binding in a proceeding for a subsequent injury between the same parties; therefore, the Workers’ Compensation Board’s finding that the claimant was 40% disabled as a result of his previous injury was an impermissible relitigation of the prior claim, where the prior claim had been settled, based on 20% disability, eight years before the subsequent injury. Parson v. Union Underwear Co., 758 S.W.2d 43, 1988 Ky. App. LEXIS 71 (Ky. Ct. App. 1988), overruled, Beale v. Faultless Hardware, 837 S.W.2d 893, 1992 Ky. LEXIS 128 ( Ky. 1992 ), overruled, Deale v. Faultless Hardware ( Ky. 1992 ).

30. Distinction Between Medical Concepts.

Medical testimony as to a worker’s physical condition consists of a medical evaluation of the worker’s physical well-being in terms of objective and subjective clinical symptoms, while medical testimony as to a worker’s functional impairment, in contrast, consists of a medical evaluation of the percentage by which the worker’s bodily functions or systems have been impaired by a particular compensable injury or disease; thus, the terms physical condition and functional impairment involve different medical concepts and should not be equated for purposes of this section. Beale v. Rolley, 777 S.W.2d 921, 1989 Ky. LEXIS 89 ( Ky. 1989 ).

31. Administrative Law Judge's Opinion.

An administrative law judge, on his own motion, was empowered to correct an error in applying the law in his opinion, where the opinion was final and had not been appealed. Wheatley v. Bryant Auto Serv., 860 S.W.2d 767, 1993 Ky. LEXIS 110 ( Ky. 1993 ).

Administrative law judge had authority pursuant to KRS 342.125 to sua sponte correct an order denying the claimant’s petition for reconsideration when it was clear that a clerical error had interposed the claimant’s name onto portions of another order. The claimant did not identify anything in the corrected order that required the matter to be remanded for additional consideration. Adams v. NHC Healthcare, 199 S.W.3d 163, 2006 Ky. LEXIS 201 ( Ky. 2006 ).

32. Coal Workers' Pneumoconiosis.

A worker who sought to reopen an award of income benefits for coal workers’ pneumoconiosis was not required to offer evidence of both a progression of the disease and a progression of respiratory impairment; evidence of a progression of respiratory impairment alone, without evidence of a progression of the disease, is sufficient to support the reopening of such an award. Whittaker v. Hurst, 39 S.W.3d 819, 2001 Ky. LEXIS 44 ( Ky. 2001 ).

Requirement in KRS 342.125(5)(a) and KRS 342.316(12) that a pneumoconiosis claimant be exposed to additional coal dust in order to reopen the claim was not a due process or equal protection violation because there was a rational basis for requiring additional exposure, and absent additional exposure, res judicata principles applied. Scott v. AEP Ky. Coals, LLC, 196 S.W.3d 24, 2006 Ky. App. LEXIS 189 (Ky. Ct. App. 2006).

Requirement in KRS 342.125(5)(a) that a pneumoconiosis claimant be exposed to additional coal dust in order to reopen a claim was not a due process or equal protection violation merely because KRS 342.125(1)(d) did not require additional injury to reopen an ordinary case; there was a rational basis for requiring additional exposure, and the more specific statute, KRS 342.125(5)(a), controlled over the more general statute. Scott v. AEP Ky. Coals, LLC, 196 S.W.3d 24, 2006 Ky. App. LEXIS 189 (Ky. Ct. App. 2006).

Dismissal of a motion to reopen a workers’ compensation claim arising from pneumoconiosis was proper because the worker had received no additional exposure to coal dust, and KRS 342.125(5)(a) required a worker seeking to reopen an award rendered under KRS 342.732 to make a preliminary showing that included a progression of pneumoconiosis, the development of respiratory impairment due the disease, and two (2) additional years of continuous exposure to the hazards of the disease in Kentucky; the additional-exposure requirement was not arbitrary or capricious, and did not violate the Kentucky Constitution. Bolin v. T & T Mining, 231 S.W.3d 130, 2007 Ky. LEXIS 171 ( Ky. 2007 ).

Cited:

Dunn v. Eaton, 233 Ky. 699 , 26 S.W.2d 513, 1930 Ky. LEXIS 614 ( Ky. 1930 ); Black Mt. Corp. v. Smiddy, 283 Ky. 682 , 142 S.W.2d 978, 1940 Ky. LEXIS 393 (1940); Pope v. Fayette Jellico Coal Co., 301 Ky. 353 , 192 S.W.2d 103, 1946 Ky. LEXIS 485 ( Ky. 1946 ); Three Point Coal Corp. v. Moser, 302 Ky. 584 , 195 S.W.2d 305, 1946 Ky. LEXIS 732 ( Ky. 1946 ); Cornwell v. Commonwealth, 304 Ky. 182 , 200 S.W.2d 286, 1947 Ky. LEXIS 607 ( Ky. 1947 ); Frennie May Coal Co. v. Snow, 312 Ky. 580 , 229 S.W.2d 56, 1950 Ky. LEXIS 712 (1950); Hendricks v. Kentucky & Virginia Leaf Tobacco Co., 312 Ky. 849 , 229 S.W.2d 953, 1950 Ky. LEXIS 769 ( Ky. 1950 ); Elkhorn Coal Co. v. Bates, 314 Ky. 837 , 236 S.W.2d 946, 1951 Ky. LEXIS 733 ( Ky. 1951 ); Paul v. Allender Brown Co., 249 S.W.2d 163, 1952 Ky. LEXIS 81 3 ( Ky. 1952 ); Thompson v. Harlan Wallins Coal Corp., 256 S.W.2d 10, 1953 Ky. LEXIS 70 6 ( Ky. 1953 ); Pfoff v. Osborne, 269 S.W.2d 710, 1954 Ky. LEXIS 1011 ( Ky. 1954 ); Department of Highways v. Tarter, 276 S.W.2d 667, 1954 Ky. LEXIS 1256 ( Ky. 1954 ); Aetna Casualty & Surety Co. v. Snyder, 291 S.W.2d 14, 1956 Ky. LEXIS 357 ( Ky. 1956 ), overruled, Charles Seligman Distributing Co. v. Brown, 360 S.W.2d 509, 1962 Ky. LEXIS 22 1 ( Ky. 1962 ), overruled in part, Charles Seligman Distributing Co. v. Brown, 360 S.W.2d 509, 1962 Ky. LEXIS 22 1 ( Ky. 1962 ); Mullins v. Kentucky West Virginia Gas Co., 307 S.W.2d 169, 1957 Ky. LEXIS 70 ( Ky. 1957 ); Stotts v. Louisville Lamp Co., 329 S.W.2d 574, 1959 Ky. LEXIS 173 ( Ky. 1959 ); Rowland v. Geary-Wright Tobacco Co., 344 S.W.2d 824, 1961 Ky. LEXIS 258 ( Ky. 1961 ); Gregory v. Louisville Taxicab & Transfer Co., 356 S.W.2d 760, 1961 Ky. LEXIS 22 ( Ky. 1961 ); Blaw-Knox Co. v. Knapp, 392 S.W.2d 76, 1965 Ky. LEXIS 271 ( Ky. 1965 ); Brown Equipment Co. v. Duff, 394 S.W.2d 926, 1965 Ky. LEXIS 228 ( Ky. 1965 ); Roberts v. Tennessee-Virginia Constr. Co., 407 S.W.2d 400, 1966 Ky. LEXIS 153 ( Ky. 1966 ); Sky Top Coal Co. v. Roark, 407 S.W.2d 411, 1966 Ky. LEXIS 161 ( Ky. 1966 ); Robinson Tool & Die, Inc. v. Gross, 432 S.W.2d 443, 1968 Ky. LEXIS 34 2 ( Ky. 1968 ); Elkhorn Stone Co. v. Webb, 478 S.W.2d 720, 1972 Ky. LEXIS 339 ( Ky. 1972 ); Maggard v. International Harvester Co., 508 S.W.2d 777, 1974 Ky. LEXIS 632 ( Ky. 1974 ); Transport Motor Express, Inc. v. Finn, 568 S.W.2d 509, 1977 Ky. App. LEXIS 922 (Ky. Ct. App. 1977); Childers v. International Harvester Co., 569 S.W.2d 675, 1977 Ky. App. LEXIS 927 (Ky. Ct. App. 1977); Commonwealth v. Workers’ Compensation Bd., 697 S.W.2d 540, 1985 Ky. App. LEXIS 652 (Ky. Ct. App. 1985); Moore v. Sunstone Energy, Inc., 849 S.W.2d 529, 1993 Ky. LEXIS 56 ( Ky. 1993 ); Green River Elec. Corp. v. Nantz, 894 S.W.2d 643, 1995 Ky. App. LEXIS 45 (Ky. Ct. App. 1995); Spurlin v. Adkins, 940 S.W.2d 900, 1997 Ky. LEXIS 34 ( Ky. 1997 ); Ashland Exploration v. Tackett, 971 S.W.2d 832, 1998 Ky. App. LEXIS 55 (Ky. Ct. App. 1998); Whittaker v. Reeder, 2000 Ky. LEXIS 93 ( Ky. 2000 ), op withdrawn, substituted op, reh’g denied, 30 S.W.3d 138, 2000 Ky. LEXIS 137 ( Ky. 2000 ), rehearing denied, 2000 Ky. LEXIS 138 (Ky. 2000); Lynch v. Lear Seating Corp., — F. Supp. 2d —, 2002 U.S. Dist. LEXIS 13452 (W.D. Ky. 2002 ); Fawbush v. Gwinn, 103 S.W.3d 5, 2003 Ky. LEXIS 81 ( Ky. 2003 ); City of Owensboro v. Adams, 136 S.W.3d 446, 2004 Ky. LEXIS 141 ( Ky. 2004 ); Pendygraft v. Ford Motor Co., 260 S.W.3d 788, 2008 Ky. LEXIS 174 ( Ky. 2008 ); Roby v. Trim Masters, Inc., 2016 Ky. App. LEXIS 129 (Ky. Ct. App. July 22, 2016).

Notes to Unpublished Decisions

Analysis

  1. Application.
  2. Review.
  3. — Grounds.
  4. — — Change of Conditions.
  5. — Time of Review.
1. Application.

Unpublished decision: KRS 342.125 , which limited the period in which an employee could reopen a claim after December 31, 1996, afforded the employee a reasonable four-year period after December 12, 1996 in which to assert a right to increased compensation, and the classifications that it imposed did not violate Ky. Const. § 59(24), as the provision served a legitimate purpose. Johnson v. Gans Furniture Indus., Inc., 114 S.W.3d 850, 2003 Ky. LEXIS 204 ( Ky. 2003 ).

2. Review.
3. — Grounds.
4. — — Change of Conditions.

Unpublished decision: Where a workers’ compensation claimant filed a motion to reopen a disability award based on an alleged worsening of the claimant’s condition, and there was conflicting medical evidence as to whether the claimant’s occupational disability had increased, the administrative law judge did not act unreasonably in relying on, inter alia, the lack of change in the claimant’s course of treatment and on the opinions of three doctors that the claimant’s condition had not worsened, in concluding that the claimant had failed to meet the claimant’s burden of proving an increase in occupational disability through objective medical evidence. Eldridge v. Hubb Corp., 2003 Ky. Unpub. LEXIS 133 (Ky. Mar. 20, 2003).

5. — Time of Review.

Unpublished decision: Administrative law judge did not abuse his discretion in granting a motion filed by an employer to set aside and reissue an order so that the employer could file a timely appeal when the original order was not mailed to the employer’s counsel. Fluor Constr. Int'l, Inc. v. Kirtley, 103 S.W.3d 88, 2003 Ky. LEXIS 67 ( Ky. 2003 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Ferreri, Workers’ Compensation: Rehabilitation and the Judicial Dichotomy, Vol. 50, No. 1, Winter 1985-86 Ky. Bench & B. 24.

Cetrulo, “Reopening” Under the Kentucky Workers’ Compensation Act, Vol. 50, No. 1, Winter 1985-86 Ky. Bench & B. 28.

Hendy, Payment of Medical Benefits for the Injured Worker: Is the Current System in Need of Refinement?, Vol. 56, No. 4, Fall 1992, Ky. Bench & Bar 28.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

Kentucky Law Journal.

Stewart, Reopening of Workmen’s Compensation Claims — Enforcement of Awards Pending Reopening Proceedings, 59 Ky. L.J. 164 (1970).

Kentucky Law Survey, Patterson, Workmen’s Compensation, 64 Ky. L.J. 307 (1975-76).

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Northern Kentucky Law Review.

King, Workers’ Compensation Update 1992-1993, 21 N. Ky. L. Rev. 329 (1994).

342.130. Compensation of alien dependents.

Compensation under this chapter to alien dependent widows, widowers and children, not residents of the United States, shall be one-half (1/2) of the amount provided in each case for residents. The employer may at any time commute all future installments of compensation to alien dependents the then value thereof. Alien parents, brothers and sisters not residents of the United States, shall not be entitled to any compensation.

History. 4903: amend. Acts 1974, ch. 386, § 61.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Applicability.
  3. Nonresident Aliens.
1. Constitutionality.

Providing only half compensation for alien widow and children not residents of the United States is constitutional. Greene v. Caldwell, 170 Ky. 571 , 186 S.W. 648, 1916 Ky. LEXIS 126 ( Ky. 1916 ). See Maryland Casualty Co. v. Chamos, 203 Ky. 820 , 263 S.W. 370, 1924 Ky. LEXIS 1022 ( Ky. 1924 ); Maryland Casualty Co. v. Vidigoj, 207 Ky. 841 , 270 S.W. 472, 1925 Ky. LEXIS 197 ( Ky. 1925 ).

2. Applicability.

Employee had lived and worked in Kentucky for at least five years when he died, and his administrator was a Kentucky resident and his estate was probated in Kentucky; KRS 342.130 had no application to the lump-sum death benefit because it was payable to his estate, which did not exist in a foreign jurisdiction and was not an alien widow, widower, or child. Bradley v. Commonwealth, 301 S.W.3d 27, 2009 Ky. LEXIS 326 ( Ky. 2009 ).

3. Nonresident Aliens.

The parents, living in Italy, of an unnaturalized native of Italy were, under this section, not entitled to compensation as dependents on the ground that nonresident aliens are barred from claiming compensation, and such ruling is not in conflict with the treaty with Italy. Norella v. Maryland Casualty Co., 216 Ky. 29 , 287 S.W. 18, 1926 Ky. LEXIS 826 ( Ky. 1926 ).

342.135. Notice, how served — Notice to nonresident alien.

Any notice required to be given under this chapter shall be considered properly given and served when deposited in the mail in a registered letter or package properly stamped and addressed to the person to whom notice is to be given at his last known address and in time to reach him in due time to act thereon. Notice may also be given and served like notices in civil actions. Any notice given and served as provided in this section to the consular representative of the nation of which any nonresident dependent of a deceased employee is a citizen or subject, or to the authorized agent or representative of any such official residing in this state, shall be deemed to have been properly given and served upon such dependent.

History. 4904.

NOTES TO DECISIONS

1. Inapplicability to Duty to Advise Worker of Rights Under Other Statutes.

Statute regarding the proper methods of notice, which is found at KRS 342.135 , is inapplicable to the Department of Workers’ Claims’ obligation under KRS 342.040(1) to advise the worker of his right to prosecute a claim. Akers v. Pike County Bd. of Educ., 171 S.W.3d 740, 2005 Ky. LEXIS 258 ( Ky. 2005 ).

Employer notified the workers’ compensation agency under KRS 342.040(1) that an employee’s temporary total disability benefits ended and the agency “advised” the employee under KRS 342.040(1) that he had two (2) years to file a new claim. KRS 342.135 did not apply so the “advice” could be sent by regular mail and the employee’s late claim was properly denied. Akers v. Pike County Bd. of Educ., 171 S.W.3d 740, 2005 Ky. LEXIS 258 ( Ky. 2005 ).

KRS 342.135 is inapplicable to the Workers’ Compensation Department’s obligation under KRS 342.040(1) since KRS 342.135 applies to notices and not to advice. Akers v. Pike County Bd. of Educ., 171 S.W.3d 740, 2005 Ky. LEXIS 258 ( Ky. 2005 ).

Cited:

Natural Resources & Environmental Protection Cabinet v. Pinnacle Coal Corp., 729 S.W.2d 438, 1987 Ky. LEXIS 199 ( Ky. 1987 ).

342.140. Computation of employee’s average weekly wage.

The average weekly wage of the injured employee at the time of the injury or last injurious exposure shall be determined as follows:

  1. If at the time of the injury which resulted in death or disability or the last date of injurious exposure preceding death or disability from an occupational disease:
    1. The wages were fixed by the week, the amount so fixed shall be the average weekly wage;
    2. The wages were fixed by the month, the average weekly wage shall be the monthly wage so fixed multiplied by twelve (12) and divided by fifty-two (52);
    3. The wages were fixed by the year, the average weekly wage shall be the yearly wage so fixed divided by fifty-two (52);
    4. The wages were fixed by the day, hour, or by the output of the employee, the average weekly wage shall be the wage most favorable to the employee computed by dividing by thirteen (13) the wages (not including overtime or premium pay) of said employee earned in the employ of the employer in the first, second, third, or fourth period of thirteen (13) consecutive calendar weeks in the fifty-two (52) weeks immediately preceding the injury;
    5. The employee had been in the employ of the employer less than thirteen (13) calendar weeks immediately preceding the injury, his or her average weekly wage shall be computed under paragraph (d), taking the wages (not including overtime or premium pay) for that purpose to be the amount he or she would have earned had he or she been so employed by the employer the full thirteen (13) calendar weeks immediately preceding the injury and had worked, when work was available to other employees in a similar occupation; and
    6. The hourly wage has not been fixed or cannot be ascertained, the wage for the purpose of calculating compensation shall be taken to be the usual wage for similar services where the services are rendered by paid employees.
  2. In occupations which are exclusively seasonal and therefore cannot be carried on throughout the year, the average weekly wage shall be taken to be one-fiftieth (1/50) of the total wages which the employee has earned from all occupations during the twelve (12) calendar months immediately preceding the injury.
  3. In the case of volunteer firemen, police, and emergency management agency members or trainees, the income benefits shall be based on the average weekly wage in their regular employment.
  4. If the employee was a minor, apprentice, or trainee when injured, and it is established that under normal conditions his or her wages should be expected to increase during the period of disability, that fact may be considered in computing his or her average weekly wage.
  5. When the employee is working under concurrent contracts with two (2) or more employers and the defendant employer has knowledge of the employment prior to the injury, his or her wages from all the employers shall be considered as if earned from the employer liable for compensation.
  6. The term “wages” as used in this section and KRS 342.143 means, in addition to money payments for services rendered, the reasonable value of board, rent, housing, lodging, and fuel or similar advantage received from the employer, and gratuities received in the course of employment from others than the employer to the extent the gratuities are reported for income tax purposes.
  7. The commissioner shall, from time to time, based upon the best available information, determine by administrative regulation industries which ordinarily do not have a full working day for five (5) days in every week. In those industries, compensation shall be computed at the average weekly wage earned by the employee at the time of injury reckoning wages as earned while working full time. “At full time” as used in this subsection means a full working day for five (5) working days in every week regardless of whether the injured employee actually worked all or part of the time.

History. 4905: amend. Acts 1946, ch. 37, § 7; 1964, ch. 192, § 14 (1); 1980, ch. 104, § 5, effective July 15, 1980; 1994, ch. 181, Part 15, § 77, effective April 4, 1994; 1998, ch. 226, § 109, effective July 15, 1998; 2010, ch. 24, § 1792, effective July 15, 2010.

NOTES TO DECISIONS

Analysis

  1. Average Weekly Wage.
  2. — Expectation of Increase.
  3. — Overtime.
  4. — Most Favorable Wage.
  5. — Hours Worked per Day.
  6. —Length of Employment.
  7. —Computation.
  8. — Fringe Benefits.
  9. — Output Pay.
  10. Full Time.
  11. Earning Capacity.
  12. Seasonal Employment.
  13. Minimum Benefits.
  14. Employer Records.
  15. Judicial Review.
  16. Factors Considered.
  17. Premium Pay.
  18. Compensable Employment.
  19. Concurrent Employment.
1. Average Weekly Wage.

“Average weekly wage” means the average weekly wage actually earned during time employee was actually employed, reckoning wages earned while working full time. Fulton Ice Co. v. Meacham, 273 Ky. 483 , 117 S.W.2d 195, 1938 Ky. LEXIS 670 ( Ky. 1938 ).

Even under the most liberal construction, farm income is not “wages.” Holman Enterprise Tobacco Warehouse v. Carter, 536 S.W.2d 461, 1976 Ky. LEXIS 78 ( Ky. 1976 ).

Where claimant testified that during the dead periods he simply did not work because work was unavailable and consistently intermittent employment was the nature of the job, and claimant explained that it often took his employer several days to find other jobs, the evidence revealed that seven weeks of work operating a bulldozer for employer out of a 13-week period constituted a normal period of service and it did in fact represent an average weekly wage based upon his future capacity to earn income under the normal and customary practices of hire in his employment. C & D Bulldozing Co. v. Brock, 820 S.W.2d 482, 1991 Ky. LEXIS 110 ( Ky. 1991 ).

Workers’ compensation administrative law judge erred in including an employee’s profit sharing disbursements in a calculation of her pre-injury average weekly wage because wages, as defined in KRS 342.140(6), did not include profit sharing within the “similar advantage” language of the statute. Ford Motor Co. v. Pendygraft, 2007 Ky. App. LEXIS 256 (Ky. Ct. App. Aug. 10, 2007), aff'd, 260 S.W.3d 788, 2008 Ky. LEXIS 174 ( Ky. 2008 ).

In this workers' compensation case, the part of the statute on wages fixed by day or hour applied because the claimant earned an hourly wage and had worked for the company for more than 13 weeks immediately preceding the injury; the administrative law judge's computation was not calculated in accordance with the statute because he did not base it on 13 consecutive calendar weeks. Belcher v. Manpower of Ind., 492 S.W.3d 156, 2016 Ky. App. LEXIS 92 (Ky. Ct. App. 2016).

Administrative law judge did not use mere speculation to calculate a worker's average weekly wage because substantial evidence showed the calculation was reasonable, based on testimony from the employer's owner, the worker, another employee, and copies of the worker's checks. Commonwealth v. Crayne, 2016 Ky. App. LEXIS 176 (Ky. Ct. App. Sept. 30, 2016), aff'd, 2017 Ky. LEXIS 71 (Ky. Mar. 23, 2017).

2. — Expectation of Increase.

Where minor claimant was permanently disabled by a partial disability eye injury, and where because the disability was partial, benefits were paid for a limited period of time, the actual period of disability was considered a lifetime one and if claimant showed, during the period of his disability, that it was expected that his wages would increase, the Administrative Law Judge (ALJ) was permitted to consider this fact in determining the minor claimant’s average weekly wage. City of Paintsville v. Ratliff, 889 S.W.2d 784, 1994 Ky. LEXIS 136 ( Ky. 1994 ).

Where minor claimant, an emergency medical technician (EMT) presented credible testimony that he expected to go into firefighting or welding, occupations which would have resulted in a wage increase during the period of his disability, and employer failed to present evidence in rebuttal, the Administrative Law Judge (ALJ) properly considered the expected wage increase based on the evidence submitted by claimant in determining the claimant’s average weekly wage used to calculate disability benefits. City of Paintsville v. Ratliff, 889 S.W.2d 784, 1994 Ky. LEXIS 136 ( Ky. 1994 ).

Factoring in an expected wage increase is inappropriate when determining temporary total disability as this section only affects permanent disability benefits. Temporary benefits to be paid must be based upon actual wage. City of Paintsville v. Ratliff, 889 S.W.2d 784, 1994 Ky. LEXIS 136 ( Ky. 1994 ).

3. — Overtime.

The exclusion of overtime or premium pay in subdivision (1)(d) of this section refers to pay in excess of the employee’s regularly hourly rate because of the extra hours worked but it does not restrict calculation of the employee’s average weekly wage to the 40-hour week. R. C. Durr Co. v. Chapman, 563 S.W.2d 743, 1978 Ky. App. LEXIS 487 (Ky. Ct. App. 1978).

Workers’ compensation claimant was entitled to the inclusion of her shift differential pay in determining her average weekly wage, for purposes of calculating her workers’ compensation benefits; the shift differential pay was not overtime pay, which was excluded from a claimant’s average weekly wage under KRS 342.140(1)(d), as the additional pay the claimant received for working the night shift was not compensation for any extra hours worked. The Gap v. Curtis, 2003 Ky. App. LEXIS 220 (Ky. Ct. App. Sept. 5, 2003), aff'd, 142 S.W.3d 111, 2004 Ky. LEXIS 172 ( Ky. 2004 ).

4. — Most Favorable Wage.

Although the Board’s finding that claimant’s hourly wage was $4.76, based on her testimony that that had been her wage at the time of her injury, was error in that the Board failed to use the formula in subdivision (1) (d) of this section for determining the most favorable average wage of a claimant, whose wages are fixed by output, nevertheless this error was harmless where it was uncontradicted that she had made over $4 per hour for a year prior to the injury, an amount equal to at least $160 per week for a 40-hour week, and would be entitled to the KRS 342.740 maximum benefits in any event, thus making further findings unnecessary. Keathley v. U. S. Shoe Co., 585 S.W.2d 386, 1979 Ky. LEXIS 273 ( Ky. 1979 ).

Where an electrician had no reason to anticipate that he would work for a contractor other than intermittently, and he knew by actual experience that he would work erratically, the electrician’s average weekly wage should be calculated by following subdivision (1) (d) of this section. Wright v. Fardo, 587 S.W.2d 269, 1979 Ky. App. LEXIS 467 (Ky. Ct. App. 1979).

5. — Hours Worked per Day.

Compensation award based on ten-hour day was justified in view of evidence from employer that deceased employee was working ten hours a day instead of eight hours. Ruth Bros. v. Roberts, 270 Ky. 339 , 109 S.W.2d 800, 1937 Ky. LEXIS 79 ( Ky. 1937 ).

6. —Length of Employment.

Where deceased employee had not worked for employer during year previous to injury and had worked less than two (2) days when injured, such employee had worked sufficient length of time to enable compensation board to compute his average weekly wage with some degree of certainty. Benito Mining Co. v. Girdner, 271 Ky. 87 , 111 S.W.2d 571, 1937 Ky. LEXIS 196 ( Ky. 1937 ).

Where deceased employee was injured on morning following day he began work and had not worked for employer during year previous to this, average weekly wages of such employee could only be computed on basis of wages earned during his two (2) days of work. Benito Mining Co. v. Girdner, 271 Ky. 87 , 111 S.W.2d 571, 1937 Ky. LEXIS 196 ( Ky. 1937 ).

This section operates on the assumption that the employment either has continued over a period of weeks or that the employer and employee contemplated that the employment would last for a number of weeks. Wright v. Fardo, 587 S.W.2d 269, 1979 Ky. App. LEXIS 467 (Ky. Ct. App. 1979).

The statutory language is clear that one should consider how long the employee “had been in the employ of the employer” and while this process would be very simple in the case of continuous employment, where the work is sporadic, a determination must be made on a case-by-case basis. C & D Bulldozing Co. v. Brock, 820 S.W.2d 482, 1991 Ky. LEXIS 110 ( Ky. 1991 ).

Where the work schedule submitted by the employer in this case clearly showed that claimant worked for employer for at least nine weeks over a 15-week period, claimant was undoubtedly in the employ of employer for at least nine weeks and the Workers’ Compensation Board Opinion recognized that there was no evidence that claimant was in the employ of employer for a longer period; therefore, the administrative law judge’s conclusion that claimant had been employed for more than 13 weeks was erroneous. C & D Bulldozing Co. v. Brock, 820 S.W.2d 482, 1991 Ky. LEXIS 110 ( Ky. 1991 ).

Subsection (1)(e) applies to injuries sustained after fewer than thirteen (13) weeks’ employment and utilizes the averaging method set forth in subsection (1)(d) in an attempt to estimate what the worker’s average weekly wage would have been over a typical thirteen (13) week period in the employment by referring to the actual wages of workers performing similar work when work was available. Huff v. Smith Trucking, 6 S.W.3d 819, 1999 Ky. LEXIS 162 ( Ky. 1999 ).

Court is constrained to follow the plain language of the provisions of KRS ch. 342 in considering workers’ compensation issues, and thus the court is compelled to follow the plain language of KRS 342.140 (3) and conclude that in the absence of being engaged in “regular employment,” a workers’ compensation claimant has no average weekly wage (AWW) from which disability income benefits can be based; while other sections of § 342.140 specifically allow for “looking back” at the 52 weeks or 12 months preceding an injury in computing an AWW—§ 342.140(1) and (2)—§ 342.140(3) includes no such provision. and had the General Assembly intended KRS 342.140(3) to allow for “looking back” in a similar fashion, such language surely would have been included therein. Justice v. Kimper Volunteer Fire Dep't, 379 S.W.3d 804, 2012 Ky. App. LEXIS 171 (Ky. Ct. App. 2012).

Court recognizes that the language in Highland Heights Volunteer Fire v. Ellis, setting forth the proposition that under KRS 342.140(3) the income benefit of volunteer personnel who have no regular employment would be zero, is arguably dicta since the claimant in that case actually had regular paid employment at the time of injury; however, this position is nonetheless entirely consistent with the language of KRS 342.140(3), and moreover, given that this position was set forth by Kentucky’s highest court, it necessarily carries considerable weight—dicta or no. Justice v. Kimper Volunteer Fire Dep't, 379 S.W.3d 804, 2012 Ky. App. LEXIS 171 (Ky. Ct. App. 2012).

Volunteer firefighter, who had been laid off from his mechanic job, had no regular income or employment at the time of the accident, and the court affirmed the finding that the firefighter had no average weekly wage at the time of injury and he was not entitled to an award of permanent disability benefits; his arguments required the court to read language into the statute that was not there, and the statute did not include a “looking back” provision in terms of employment that was present in other statutory sections. Justice v. Kimper Volunteer Fire Dep't, 379 S.W.3d 804, 2012 Ky. App. LEXIS 171 (Ky. Ct. App. 2012).

7. —Computation.

Where employee earned $5 to $6 per day when he worked, his average weekly earnings were $30, notwithstanding that during eight months prior to injury he actually earned an average of $18.41 per week. Chatfield v. Jellico Coal Mining Co., 205 Ky. 415 , 265 S.W. 943, 1924 Ky. LEXIS 132 ( Ky. 1924 ).

Where injury occurred prior to 1964 amendment of this section, daily compensation multiplied by five (5), exclusive of overtime pay, fixed the average weekly wage. Cantrell v. Stambaugh, 420 S.W.2d 677, 1967 Ky. LEXIS 129 ( Ky. 1967 ).

Where the claimant’s testimony established that his average weekly wage was $33.44, the maximum amount of recovery would be $22.29 per week where there was no evidence that the employee worked less than a five-day week. Young v. Moore, 459 S.W.2d 591, 1970 Ky. LEXIS 135 ( Ky. 1970 ).

Where an ice cream truck driver was killed after selling ice cream for six weeks during which time he earned $425, the Board improperly computed his average weekly wage as $70.50, where the Board simply took the total wages he earned and divided it by the number of weeks he worked rather than applying the statutory formula set out in subdivision (2) of this section. Heckel v. Singleton, 627 S.W.2d 279, 1982 Ky. App. LEXIS 200 (Ky. Ct. App. 1982).

Calculations under either subdivisions (1)(d) or (1)(e) of this section are made utilizing a 13-week period; therefore, where the Workers’ Compensation Board borrowed two weeks of employment from weeks 14 and 15 to reach a total of nine, it was error and the proper calculation would be based upon the wages earned for seven weeks during the 13-week period preceding the injurious exposure under subdivision (1)(e). C & D Bulldozing Co. v. Brock, 820 S.W.2d 482, 1991 Ky. LEXIS 110 ( Ky. 1991 ).

A claimant’s actual earnings as an independent contractor per his separate aluminum siding business could not be included when calculating his average weekly wage. Hale v. Bell Aluminum, 986 S.W.2d 152, 1998 Ky. LEXIS 169 ( Ky. 1998 ).

Viewing claimant’s earnings over a two (2) week period as though that was all he would reasonably have been expected to earn had the employment existed for the thirteen (13) weeks immediately preceding his injury, and using this as the basis for computing his average weekly wage, was not supported by any substantial evidence. Huff v. Smith Trucking, 6 S.W.3d 819, 1999 Ky. LEXIS 162 ( Ky. 1999 ).

Administrative law judge erred in calculating a workers’ compensation claimant’s average weekly wage at $585 per week pursuant to KRS 342.140 because the evidence established that the claimant worked an average of 291/4 hours per week with the employer, and there was no evidence that the average would have been any greater had the claimant been employed by the employer for the entire 13-week period preceding the injury. Fawbush v. Gwinn, 103 S.W.3d 5, 2003 Ky. LEXIS 81 ( Ky. 2003 ).

Additional pay that a workers’ compensation claimant received for working the night shift was part of her regular pay and was properly considered in determining her average weekly wage for purposes of calculating her workers’ compensation benefits; the claimant provided an additional service to the employer by working at an undesirable time and was not paid extra in return for working more than 40 hours per week. The Gap v. Curtis, 142 S.W.3d 111, 2004 Ky. LEXIS 172 ( Ky. 2004 ).

Workers’ compensation claimant was entitled to have the claimant’s average weekly wage calculated under KRS 342.140(1)(e) because the claimant had been placed at a job site, where the claimant was injured after three days, by a temp agency for which the claimant had worked sporadically and from which the claimant had not received payment or benefits between placements. Nesco v. Haddix, 339 S.W.3d 465, 2011 Ky. LEXIS 83 ( Ky. 2011 ).

KRS ch. 342 requires the findings of fact that support an award to be based upon substantial evidence; it does not require documentary proof of a worker’s average weekly wage in a case where nothing refutes testimony by the worker and his foreman that the employer paid its employees in cash. Therefore, in a workers’ compensation case, there was no error in the computation of a claimant’s average weekly wage at $150 per week, even though the claimant only worked for a few days before being injured in an accident, where there was testimony that the claimant was paid $50 per day for his working three or four days per week. Abel Verdon Constr. v. Rivera, 348 S.W.3d 749, 2011 Ky. LEXIS 116 ( Ky. 2011 ).

Employee’s unemployment benefits were not used to calculate the employee’s average weekly wage, for workers’ compensation, under KRS 342.140(6), because (1) the benefits were paid when services were not rendered, (2) the benefits were a wage substitute and social benefit, and (3) the benefits’ treatment under KRS 342.730(5) or taxation status was irrelevant. Jewell v. Ford Motor Co., 2014 Ky. App. LEXIS 61 (Ky. Ct. App. Apr. 11, 2014), aff'd, 462 S.W.3d 713, 2015 Ky. LEXIS 1632 ( Ky. 2015 ).

Supplemental unemployment benefits an employer paid an employee under a collective bargaining agreement while the employee was laid off were used to calculate the employee’s average weekly wage (AWW), for workers’ compensation purposes, because (1) the benefits were in the nature of wages rather than fringe benefits, (2) including the benefits advanced the remedial goals of the workers’ compensation statute, (3) excluding the benefits artificially deflated the employee’s AWW, and (4) the benefits were part of the employee’s base wage paid during layoff periods to retain the employee to remain available to resume working instead of pursuing other work. Jewell v. Ford Motor Co., 2014 Ky. App. LEXIS 61 (Ky. Ct. App. Apr. 11, 2014), aff'd, 462 S.W.3d 713, 2015 Ky. LEXIS 1632 ( Ky. 2015 ).

Administrative law judge (ALJ) correctly excluded unemployment compensation benefits when he calculated an employee's average weekly wage because unemployment compensation benefits were not wages where they were not payments for services rendered and were not received from the employer, but were to offset workers compensation benefits. Jewell v. Ford Motor Co., 462 S.W.3d 713, 2015 Ky. LEXIS 1632 ( Ky. 2015 ).

ALJ did not err in calculating an injured waitress's average weekly wage based upon Ky. Rev. Stat. Ann. § 342.140 ( l )(d), rather than Ky. Rev. Stat. Ann. § 342.140 ( l )(a), where the fact that her tip income was not reported for tax purposes and a portion of her tips was not included in compliance with Ky. Rev. Stat. Ann. § 342.140(6) did not alter the reality that she was paid a variable wage based upon a wage plus tips arrangement. Commonwealth v. Sidebottom, 509 S.W.3d 701, 2017 Ky. LEXIS 2 ( Ky. 2017 ).

8. — Fringe Benefits.

Compensation does not include fringe benefits, specifically, employer pension plan contributions, health insurance benefits, and life insurance premiums. Rainey v. Mills, 733 S.W.2d 756, 1987 Ky. App. LEXIS 511 (Ky. Ct. App. 1987).

Plain meaning of KRS 342.140(6) does not encompass profit sharing as a form of money payments for services rendered. Ford Motor Co. v. Pendygraft, 2007 Ky. App. LEXIS 256 (Ky. Ct. App. Aug. 10, 2007), aff'd, 260 S.W.3d 788, 2008 Ky. LEXIS 174 ( Ky. 2008 ).

9. — Output Pay.

Where a pants presser was employed on an hourly basis, additional payment for extra pants pressed during her 40-hour work week was output pay rather than premium pay; thus, the additional amount could not be excluded as premium pay under subdivision (1)(d) of this section in calculating her average weekly wage. Denim Finishers, Inc. v. Baker, 757 S.W.2d 215, 1988 Ky. App. LEXIS 165 (Ky. Ct. App. 1988).

Where the claimant’s employment was intermittent and his wages were fixed by his output, his average weekly wage was properly calculated under subsection (1)(e) of this section. Hale v. Bell Aluminum, 986 S.W.2d 152, 1998 Ky. LEXIS 169 ( Ky. 1998 ).

10. Full Time.

“At full time” means full working day for six workdays in every week of year, regardless of whether injured employee actually worked for all or part of time. American Tobacco Co. v. Grider, 243 Ky. 87 , 47 S.W.2d 735, 1932 Ky. LEXIS 21 ( Ky. 1932 ). See Benito Mining Co. v. Girdner, 271 Ky. 87 , 111 S.W.2d 571, 1937 Ky. LEXIS 196 ( Ky. 1937 ).

Full time means a full working day for six (6) days in every week of the year, regardless of whether the employee actually worked all or part of the time, and even though basis of pay was tonnage rather than time worked. Lexington Mining Co. v. Richardson, 286 Ky. 418 , 150 S.W.2d 889, 1941 Ky. LEXIS 256 ( Ky. 1941 ).

Where claimant drove a school bus two and one-half hours per day or a total of 12 and one-half hours per week, such job was not a full-time job. Yocom v. Yates, 566 S.W.2d 796, 1978 Ky. App. LEXIS 533 (Ky. Ct. App. 1978).

11. Earning Capacity.

Actual wages received over a short period of time may have no relation to a workers’ earning capacity. Lexington Mining Co. v. Richardson, 286 Ky. 418 , 150 S.W.2d 889, 1941 Ky. LEXIS 256 ( Ky. 1941 ).

In order to have his wages calculated under subdivision (1)(e), a claimant was not required to prove that he would have worked during the 13 weeks immediately preceding his injury; there is no requirement that a claimant prove a willingness to work prior to the injury in calculating the average weekly wage. Central Ky. Steel v. Wise, 19 S.W.3d 657, 2000 Ky. LEXIS 73 ( Ky. 2000 ).

Pursuant to KRS 342.730(1)(c)1, while a claimant retained the physical capacity to perform his duties as a mold technician, since the claimant also worked over-time for the same employer as an assembler and thus earned a higher wage, the claimant was entitled to have the Administrative Law Judge consider the claimant’s physical capacity to perform his duties as an assembler. Miller v. Square D Co., 254 S.W.3d 810, 2008 Ky. LEXIS 108 ( Ky. 2008 ).

12. Seasonal Employment.

A person employed at a state park from April to October as a general maintenance and garbage pickup worker was engaged in an occupation which was exclusively seasonal. Department of Parks v. Kinslow, 481 S.W.2d 686, 1972 Ky. LEXIS 272 ( Ky. 1972 ).

A summer job for a student is not seasonal merely because the student is only planning to work during the summer, rather it is seasonal because of what the job itself entails. May v. James H. Drew Shows, Inc., 576 S.W.2d 524, 1978 Ky. App. LEXIS 662 (Ky. Ct. App. 1978).

The test in determining whether an occupation is seasonal is not what the plaintiff intended, but what the job itself was, seasonal or permanent. May v. James H. Drew Shows, Inc., 576 S.W.2d 524, 1978 Ky. App. LEXIS 662 (Ky. Ct. App. 1978).

Where there was no evidence that claimant, who was working during the summer, between his junior and senior high school years, as a roustabout for carnival, doing anything requested of him, and who was injured while driving a truck for the carnival, could not have continued working as a truck driver, the Board’s finding that claimant was not a seasonal worker was supported by substantial evidence; moreover, had he continued to work the carnival in other parts of the country he would not have been a seasonal worker simply because carnivals do not play Kentucky in the winter. May v. James H. Drew Shows, Inc., 576 S.W.2d 524, 1978 Ky. App. LEXIS 662 (Ky. Ct. App. 1978).

Employee of paving company was not “exclusively seasonal”; the fact that employee’s work was actually performed year-round would not be overshadowed by the fact that paving was dictated by the weather. Travelers Ins. Co. v. Duvall, 884 S.W.2d 665, 1994 Ky. LEXIS 96 ( Ky. 1994 ).

Seasonal employment consists of an occupation which is exclusively seasonal and therefore cannot be carried on throughout the year; thus, an assembly line worker at a company which manufactured oil and gas residential heating units was not a seasonal employee where the company, by its own admission, would have been in full time production of heating units if justified by market conditions. Barlow v. Desa Int'l, Inc., 2000 Ky. App. LEXIS 112 (Ky. Ct. App. Sept. 29, 2000), rev'd, 59 S.W.3d 872, 2001 Ky. LEXIS 132 ( Ky. 2001 ).

The purpose of the statute was to determine a given worker’s wage-earning capacity so that the resulting income benefit would be based upon a realistic estimation of what the worker would have expected to earn had the injury not occurred; worker’s average weekly wage under either subsection (1)(d) or (2) took into account the worker’s earnings during the entire year preceding the injury. Desa Int'l, Inc. v. Barlow, 59 S.W.3d 872, 2001 Ky. LEXIS 132 (Ky.), modified, 59 S.W.3d 872, 2001 Ky. LEXIS 209 ( Ky. 2001 ).

13. Minimum Benefits.

Where claimant had been injured in August, 1974, had applied for workers’ compensation, and made all appeals within the required time periods, and where the appellate procedure had not been exhausted, nor had the award of the Board become final and the case had not been fully decided prior to November 12, 1976, the claimant was entitled to receive minimum benefits for permanent partial disability calculated pursuant to Apache Coal Co. v. Fuller, 541 S.W.2d 933, 1976 Ky. LEXIS 28 (Ky. l976).May v. James H. Drew Shows, Inc., 576 S.W.2d 524, 1978 Ky. App. LEXIS 662 (Ky. Ct. App. 1978).

14. Employer Records.

Books kept by employer only constitute evidence of highest order as to average earnings of injured employee and are not conclusive as to such earnings. Jones v. Davis, 246 Ky. 293 , 54 S.W.2d 681, 1932 Ky. LEXIS 734 ( Ky. 1932 ).

Although not conclusive, the records of the employer, made regularly in the course of the service, constitute evidence of the highest order for establishing the time of service and amount of earnings. Elkhorn Coal Co. v. Stout, 293 Ky. 51 , 168 S.W.2d 332, 1943 Ky. LEXIS 552 ( Ky. 1943 ).

Records of employer prevailed over estimates by employee as to actual earnings. Elkhorn Coal Co. v. Stout, 293 Ky. 51 , 168 S.W.2d 332, 1943 Ky. LEXIS 552 ( Ky. 1943 ).

15. Judicial Review.

While calculation of an average weekly wage is normally a finding of fact, where the facts were undisputed and stipulated, the real issue involved the application and interpretation of subdivision (1)(d) of this section, and the Workers’ Compensation Board’s finding was due no special weight. Denim Finishers, Inc. v. Baker, 757 S.W.2d 215, 1988 Ky. App. LEXIS 165 (Ky. Ct. App. 1988).

The Workers’ Compensation Board did not exceed the proper scope of review or invade the province of the administrative law judge as fact finder on a case involving wage calculation when the Board reversed the administrative law judge’s opinion, where what little proof existed was contrary to the administrative law judges conclusion, there was no other proof to support the conclusion, and the Board’s opinion was well-reasoned and within the proper bounds of review. C & D Bulldozing Co. v. Brock, 820 S.W.2d 482, 1991 Ky. LEXIS 110 ( Ky. 1991 ).

Workers’ Compensation Board exceeded its authority by remanding a claim in order to provide the claimant with a second opportunity to meet his burden of proof. The claimant was not entitled to a second opportunity to prove his average weekly wage. Commonwealth v. Rogers, 396 S.W.3d 292, 2012 Ky. LEXIS 46 ( Ky. 2012 ).

16. Factors Considered.

The Board properly construed subsection (1)(e) as authorizing a consideration of evidence concerning the wages earned by timber cutters who worked for other employers in the area where claimant lived, though the total should have been reduced due to weather which prevented cutting. Huff v. Smith Trucking, 6 S.W.3d 819, 1999 Ky. LEXIS 162 ( Ky. 1999 ).

To the extent that an employee received a profit-sharing as part of a union agreement during years when an employer had a profit, in lieu of wages, the employee’s actual hourly wage could not be considered as fixed, and the average weekly wage of the employee needed to be determined under KRS 342.140 based on the usual wage of employees who performed similar work. Pendygraft v. Ford Motor Co., 260 S.W.3d 788, 2008 Ky. LEXIS 174 ( Ky. 2008 ).

17. Premium Pay.

Shift differential pay is not premium pay under KRS 342.140 (1)(d) as “premium pay” is not defined in the Kentucky Workers’ Compensation Act, KRS 342.0011 et seq., and KRS 342.140 (1)(d) has to be interpreted in accordance with the legislature’s intent in enacting the statute; the purpose of KRS 342.140 is to determine a worker’s wage-earning capacity so that the resulting income benefit will be based upon a realistic estimation of what the worker would have expected to earn had the injury not occurred. The Gap v. Curtis, 2003 Ky. App. LEXIS 220 (Ky. Ct. App. Sept. 5, 2003), aff'd, 142 S.W.3d 111, 2004 Ky. LEXIS 172 ( Ky. 2004 ).

18. Compensable Employment.

Under KRS 342.0011(17) and KRS 342.140(6), the term “wages” takes into account items that are reported on the employee’s income tax returns. Regardless of whether an individual is paid in cash or in kind, the value of the compensation must be considered when determining whether the individual had received “aid or sustenance only” in return for work, and, likewise, if an individual is compensated, it is immaterial under KRS 342.650(3) that the individual or the organization for which he works considers him to be a “volunteer.” Anderson v. Homeless & Housing COA, 135 S.W.3d 405, 2004 Ky. LEXIS 123 ( Ky. 2004 ).

19. Concurrent Employment.

Where a worker was employed as a tax consultant in addition to her regular employment with an employer, she was concurrently employed for purposes of workers’ compensation, despite the fact that her work with the accounting firm was irregular, that she did not receive a regular payment from the accounting firm, and that she was not receiving remuneration from the accounting firm on the date of her injury; although the majority of the worker’s accounting work was done during tax season, she was on-call during the rest of the year and continued to receive direct payments for the tax returns she completed. Wal-Mart v. Southers, 152 S.W.3d 242, 2004 Ky. App. LEXIS 307 (Ky. Ct. App. 2004).

Where a retail sales clerk was injured while working for that employer and he was physically able to return to doing that work, although he could not physically perform the functions of his concurrent job as a printing press operator for another employer, his claim for enhanced income benefits based on wages from the other employer was properly refused because KRS 342.730(1)(c)1 provided the triple benefit for a loss of the physical capacity to return to the type of work that the employee performed when he was injured; concurrent employment earnings that could be considered were meant to account more nearly for the earning capacity of those who were partially disabled and who performed more than one low-wage or part-time job. Lowe's # 0507 v. Greathouse, 182 S.W.3d 524, 2006 Ky. LEXIS 13 ( Ky. 2006 ).

Cited:

Chickasaw Wood Products Co. v. Babbs, 298 Ky. 409 , 182 S.W.2d 953, 1944 Ky. LEXIS 903 ( Ky. 1944 ); Green Valley Coal Co. v. Carpenter, 397 S.W.2d 134, 1965 Ky. LEXIS 63 ( Ky. 1965 ); Clay Coal Corp. v. Abner, 401 S.W.2d 56, 1966 Ky. LEXIS 399 ( Ky. 1966 ); Cabe v. Toler, 411 S.W.2d 41, 1967 Ky. LEXIS 455 ( Ky. 1967 ); Transport Motor Express, Inc. v. Finn, 568 S.W.2d 509, 1977 Ky. App. LEXIS 922 (Ky. Ct. App. 1977); Elmendorf Farms v. Goins, 593 S.W.2d 81, 1979 Ky. App. LEXIS 499 (Ky. Ct. App. 1979); Uninsured Employers’ Fund v. Poyner, 829 S.W.2d 430, 1992 Ky. App. LEXIS 76 (Ky. Ct. App. 1992).

Notes to Unpublished Decisions

1. Average Weekly Wage.
2. — Computation.

Unpublished decision: Where, during the 13 weeks immediately before the injury, a claimant worked for another company for 2 weeks, was unemployed for 7 weeks, and then worked for the employer for 4 weeks, but there was no pattern of consistently intermittent employment with the employer, and there was no evidence as to the amount of work that the employer had available during the preceding 9 weeks or what a person such as the claimant would have been likely to earn, there was no evidence to support an inference that the claimant would have worked 39 hours per week so as to earn the weekly wage found by the administrative law judge, and his finding on this issue was error. Fawbush v. Gwinn, 103 S.W.3d 5, 2003 Ky. LEXIS 81 ( Ky. 2003 ).

Opinions of Attorney General.

Unpaid volunteer employees, other than volunteer firemen, policemen, or civil defense workers, are not covered by workers’ compensation. OAG 70-777 .

Where the school board hires some bus drivers and contracts with some drivers who furnish their own buses, the wages of the contract drivers can be the same as the noncontract drivers for purposes of compensation or the board can determine the value of the cost of operating buses including depreciated cost and subtract said sum from the contract to determine the hourly wage for compensation purposes. OAG 72-203 .

In determining the base salary of volunteer firemen, their wages in their regular employment would be considered if they earned no money as volunteer firemen. OAG 72-832 .

Subsection (1)(f) of this section would be used in determining a salary base where the employee had no regular wages. OAG 72-832 .

All officers and employees of Beechwood Village, whether part or full-time, whether elected or appointed, whether paid or volunteer, were required to be covered under the workers’ compensation law and if they were injured in the scope of their employment and did not have coverage, the unemployer’s insurance fund would be responsible for the payment and it could then recover against the employer. OAG 73-511 .

The workers’ compensation benefits that would be received by a volunteer fireman in the case of injury would be based upon his average weekly wages in his regular employment if he received no pay as a volunteer fireman and upon wages which a paid fireman would receive if he did not work at any other job. OAG 74-106 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey: Cassis, Workmen’s Compensation, 66 Ky. L.J. 509 (1977-78).

Kentucky Law Survey, Basil, Workers’ Compensation, 69 Ky. L.J. 687 (1980-81).

Northern Kentucky Law Review.

Comments, Kentucky Workmen’s Compensation Benefits — Apportionment and Computation, 6 N. Ky. L. Rev. 91 (1979).

342.143. Method for determining the average weekly wage of the state.

For the purposes of this chapter, the average weekly wage of the state shall be determined by the commissioner as follows: On or before September 1 of each year, the total wages reported by subject employers under the Kentucky Unemployment Insurance Law for the preceding calendar year shall be divided by the average monthly number of insured workers (determined by dividing the total number of insured workers reported for the preceding year by twelve (12)). The average annual wage thus obtained shall be divided by fifty-two (52) and the average weekly wage thus determined rounded to the nearest cent. The average weekly wage shall be certified to the commissioner by the Education and Workforce Development Cabinet in a manner prescribed by the commissioner by administrative regulation. The average weekly wage as so determined shall be applicable for the full period during which income or death benefits are payable, when the date of occurrence of injury or of disability in the case of disease, or of death, falls within the calendar year commencing January 1 following the September 1 determination. Whenever a change in the average weekly wage of the state is of such amount that the minimum weekly income benefits for total disability or for death are increased or decreased by one dollar ($1) or more, or the maximum weekly income benefits for total disability or for death are increased or decreased by two dollars ($2) or more, computed in each case and rounded to the nearest dollar, an adjustment in those minimums or maximums which are affected in the requisite amount by the change in the average weekly wage of the state shall be made which will reflect this increase or decrease, but no change in such limitations shall otherwise be made. Notwithstanding the provisions of this section, KRS 342.140 and 342.740 , or any other provisions of this chapter to the contrary, the average weekly wage for calendar years 1995 and 1996 shall be determined to be no higher than the average weekly wage determined by the commissioner to be in effect in the calendar year of 1994. If the average weekly wage calculated by the commissioner is determined to be lower than the 1994 calendar year wage, the average weekly wage may be lowered as provided by this section. Beginning in calendar year 1997 and annually thereafter, the average weekly wage shall be calculated based upon the state average weekly wage in effect two (2) years prior to that calculation.

History. Enact. Acts 1946, ch. 37, § 7; 1964, ch. 192, § 14(2); 1974, ch. 74, Art. VI, § 107(14); 1987 (Ex. Sess.), ch. 1, § 17, effective January 4, 1988; 1994, ch. 181, Part 7, § 29, effective April 4, 1994; 1996, ch. 271, § 24, effective July 15, 1996; 2006, ch. 211, § 158, effective July 12, 2006; 2009, ch. 11, § 81, effective June 25, 2009; 2010, ch. 24, § 1793, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Princess Coals, Inc. v. Stapleton, 435 S.W.2d 62, 1968 Ky. LEXIS 193 ( Ky. 1968 ); Maggard v. International Harvester Co., 508 S.W.2d 777, 1974 Ky. LEXIS 632 ( Ky. 1974 ); Transport Motor Express, Inc. v. Finn, 568 S.W.2d 509, 1977 Ky. App. LEXIS 922 (Ky. Ct. App. 1977).

Research References and Practice Aids

Kentucky Bench & Bar.

Schabell, 1994 Workers’ Compensation Changes — A Plaintiff’s Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 17.

Northern Kentucky Law Review.

Comments, Kentucky Workmen’s Compensation Benefits — Apportionment and Computation, 6 N. Ky. L. Rev. 91 (1979).

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

342.145. Deduction of voluntary payments — Payments monthly or quarterly. [Repealed.]

Compiler’s Notes.

This section (4906) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973.

342.150. Lump-sum compensation — When and how made. [Repealed.]

Compiler’s Notes.

This section (4907: amend. Acts 1972, ch. 78, § 25; 1980, ch. 104, § 6, effective July 15, 1980; 1987 (Ex. Sess.), ch. 1, § 18, effective January 4, 1988) was repealed by Acts 1996 (Ex. Sess.), ch. 1, § 83, effective December 12, 1996. For present law see KRS 342.265 .

342.155. Payment of lump-sum compensation to trustee.

Whenever the administrative law judge considers it expedient, any lump sum which is paid as provided in this chapter shall be paid to any suitable person appointed by the District Court of the county of the residence of the injured employee or of his dependents as trustee to administer or apply the same for the benefit of the person or persons entitled thereto. The receipt of such trustee for the amount so paid to him shall discharge the employer and his insurer. Except as otherwise herein specifically provided, the manner of qualification and the rights, duties, and liabilities of the trustee shall be determined by the general laws of this state.

History. 4908: amend. Acts 1980, ch. 104, § 7, effective July 15, 1980; 1987 (Ex. Sess.), ch. 1, § 19, effective January 4, 1988; 1996 (1st Ex. Sess.), ch. 1, § 73, effective December 12, 1996.

NOTES TO DECISIONS

  1. Trust Fund.
  2. — Voluntary Trustee.
  3. — Misapplication of Funds.
  4. — Termination.
  5. Release of Liability.
1. Trust Fund.

Lump-sum settlement is a trust fund for the support of the dependents during the period of compensation. Mullins v. Jennings' Guardian, 273 Ky. 68 , 115 S.W.2d 340, 1938 Ky. LEXIS 580 ( Ky. 1938 ).

2. — Voluntary Trustee.

Widow who was awarded compensation in lump sum for death of husband but was not appointed trustee by county judge/executive nevertheless held the money in trust for the benefit of the deceased husband’s dependents, and widow’s father and mother, to whom widow delivered the money for the purpose of buying a farm for her and her children, held the money, and later the land so purchased, under the same trust. Turner v. Risner, 280 Ky. 822 , 134 S.W.2d 951, 1939 Ky. LEXIS 220 ( Ky. 1939 ).

3. — Misapplication of Funds.

Trustee of money awarded in lump sum under workers’ compensation law for benefit of dependents of deceased employee has no power to invest trust money in land and then jeopardize the interest of the beneficiaries of the trust fund by encumbering the land with a lien to secure the balance of the purchase price; and such a purchase and encumbrance constitutes a misapplication of the trust money. Turner v. Risner, 280 Ky. 822 , 134 S.W.2d 951, 1939 Ky. LEXIS 220 ( Ky. 1939 ).

Where bank, with knowledge of the facts, sold land to trustee of funds awarded under compensation law for death of employee, for a sum much greater than the value of the land and in excess of the trust fund, and took from the trustee a note for the unpaid balance of the purchase money, secured by a lien on the land, and later took back the land for default in payment of interest, it was liable for misapplication of the trust fund, and the land was subject to a lien in favor of the dependents of the deceased employee. Turner v. Risner, 280 Ky. 822 , 134 S.W.2d 951, 1939 Ky. LEXIS 220 ( Ky. 1939 ).

4. — Termination.

If a trust is created by obtaining a lump-sum settlement, its only purpose being to purchase a home for the widow and children, it terminates upon the accomplishment of the trust purpose. Ball v. Smiddy, 249 S.W.2d 715, 1952 Ky. LEXIS 838 ( Ky. 1952 ).

5. Release of Liability.

When court-appointed trustee receives lump-sum compensation settlement with board approval, employer or his insurer becomes completely discharged from further liability for compensation. Mullins v. Jennings' Guardian, 273 Ky. 68 , 115 S.W.2d 340, 1938 Ky. LEXIS 580 ( Ky. 1938 ).

Children of a deceased employee have no cause of action against the company who paid the compensation to one whom a court of competent jurisdiction held was their guardian and to whom the court directed the company should make payment. Consolidation Coal Co. v. Hall, 296 Ky. 390 , 177 S.W.2d 150, 1944 Ky. LEXIS 544 ( Ky. 1944 ).

Research References and Practice Aids

Cross-References.

Administration of trusts, KRS Ch. 386.

342.160. Payments to certain dependents for others — Effect of legal disability of dependent.

  1. The benefits in case of death shall be paid to one (1) or more dependents of the deceased employee for the benefit of all the dependents entitled thereto, as determined by the administrative law judge. The dependents to whom payments are made shall apply the same to the use of the persons entitled thereto under this chapter, according to their respective claims on the deceased for support. The compensation of a mentally disabled person shall be paid to his guardian or conservator.
  2. If the dependents are a widow, widower, or other head of a family of minor children and one (1) or more minor children, it shall be sufficient for the widow, widower, or head of the family to make application for compensation on behalf of all. Where the dependents are mentally incapacitated or are minors the head of whose family is not a dependent, the application may be made by the guardian, conservator, or next friend of such dependents.

History. 4909: amend. Acts 1974, ch. 386, § 62; 1982, ch. 141, § 91, effective July 1, 1982; 1987 (Ex. Sess.), ch. 1, § 20, effective January 4, 1988; 1996 (1st Ex. Sess.), ch. 1, § 56, effective December 12, 1996; 2000, ch. 514, § 8, effective July 14, 2000.

Compiler’s Notes.

This section was amended by § 97 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

  1. Minor Children.
  2. — Representation.
  3. — — Appeal.
  4. Illegitimate Children.
  5. — Representation.
  6. Parents.
  7. Nonresident Dependent.
  8. Apportioning of Award.
1. Minor Children.
2. — Representation.

Dependent widow of deceased employee, who was also head of a family of minor children who were also dependents, was statutory next friend for the purpose of applying for and obtaining the death benefits provided by the law. Ashland Iron & Mining Co. v. Fowler, 208 Ky. 422 , 271 S.W. 589, 1924 Ky. LEXIS 21 ( Ky. 1924 ).

Where widow of deceased employer executed compensation agreement with employer, signed by widow and not by dependent infant children, such agreement was valid when approved by Compensation Board, since power of widow to apply for and receive benefits on behalf of her minor children carried with it power to execute agreement on their behalf. Holt Bros. Min. Co. v. Fisher, 255 Ky. 418 , 74 S.W.2d 469, 1934 Ky. LEXIS 248 ( Ky. 1934 ).

Where compensation payments to widow and her infant children stopped upon remarriage of widow, time limitation did not run to bar application for review by such children, since such remarriage meant children had no one authorized to claim compensation for them. Clover Folk Coal Co. v. Scoggins, 263 Ky. 424 , 91 S.W.2d 543, 1936 Ky. LEXIS 124 ( Ky. 1936 ).

Where widow had voluntarily abandoned her husband and moved to another state before his death and was not dependent on him at the time of his death, she was not qualified as a joint dependent to proceed to obtain compensation for minor child and, being a nonresident without being his joint dependent, she could not act as the next friend of her infant child. Davis v. Mitchell, 266 Ky. 151 , 98 S.W.2d 474, 1936 Ky. LEXIS 625 ( Ky. 1936 ).

Statute of limitations which required former employee to file a workers’ compensation claim within two (2) years after his employer made its last payment of voluntary income benefits was not tolled by KRS 342.210 for an employee who was 15 years old when he was injured because the employee’s parents were appointed as his next friends to file a civil action against the employer and they could have filed a workers’ compensation claim in his behalf, and the state Supreme Court upheld an administrative law judge’s decision that the employee’s claim for benefits was time-barred. Roberts v. George W. Hill & Co., 113 S.W.3d 156, 2003 Ky. LEXIS 168 ( Ky. 2003 ).

3. — — Appeal.

Where widow made original compensation claim for benefit of her infant children as their mother, then remarried, she could ask reopening of case in same capacity, and any lack of such capacity because she had remarried was waived on appeal when unobjected to at time of reopening before Compensation Board. Clover Folk Coal Co. v. Scoggins, 263 Ky. 424 , 91 S.W.2d 543, 1936 Ky. LEXIS 124 ( Ky. 1936 ).

4. Illegitimate Children.
5. — Representation.

A recognized illegitimate child who was a minor and whose mother was not a dependent could make application for compensation by next friend. Lockhart's Guardian v. Bailey Pond Creek Coal Co., 235 Ky. 278 , 30 S.W.2d 955, 1930 Ky. LEXIS 333 ( Ky. 1930 ).

6. Parents.

Where widow of deceased employee received compensation until her death, employee’s mother did not become entitled to unpaid portion of widow’s compensation, as such mother was never party to compensation proceeding. Black Mountain Corp. v. Swain, 271 Ky. 305 , 111 S.W.2d 676, 1937 Ky. LEXIS 235 ( Ky. 1937 ).

7. Nonresident Dependent.

Adult nonresident dependent of deceased employee is compelled to proceed to obtain compensation within lawfully prescribed time for himself as well as for all other dependents laboring under legal disability, head of which family was such adult nonresident dependent. Davis v. Mitchell, 266 Ky. 151 , 98 S.W.2d 474, 1936 Ky. LEXIS 625 ( Ky. 1936 ).

Nonresident sui juris dependent parent must proceed to obtain compensation within time prescribed in this chapter not only for parent but for all other dependents in family of which such adult nonresident dependent is the head, laboring under legal disability. Davis v. Mitchell, 266 Ky. 151 , 98 S.W.2d 474, 1936 Ky. LEXIS 625 ( Ky. 1936 ).

8. Apportioning of Award.

Where it appears that best interest of partially dependent father will be served by payment to such dependent or someone on his behalf, total payment should not be made to totally dependent wife of one month. Penn v. Penn, 183 Ky. 228 , 209 S.W. 53, 1919 Ky. LEXIS 481 ( Ky. 1919 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

342.165. Increase or decrease in compensation for failure to comply with safety law — Compensation not payable if employee falsely represents physical condition or medical history at time of employment.

  1. If an accident is caused in any degree by the intentional failure of the employer to comply with any specific statute or lawful administrative regulation made thereunder, communicated to the employer and relative to installation or maintenance of safety appliances or methods, the compensation for which the employer would otherwise have been liable under this chapter shall be increased thirty percent (30%) in the amount of each payment. If an accident is caused in any degree by the intentional failure of the employee to use any safety appliance furnished by the employer or to obey any lawful and reasonable order or administrative regulation of the commissioner or the employer for the safety of employees or the public, the compensation for which the employer would otherwise have been liable under this chapter shall be decreased fifteen percent (15%) in the amount of each payment.
  2. No compensation shall be payable for work-related injuries if the employee at the time of entering the employment of the employer by whom compensation would otherwise be payable falsely represents, in writing, his or her physical condition or medical history, if all of the following factors are present:
    1. The employee has knowingly and willfully made a false representation as to his or her physical condition or medical history;
    2. The employer has relied upon the false representation, and this reliance was a substantial factor in the hiring; and
    3. There is a causal connection between the false representation and the injury for which compensation has been claimed.

History. 4910: amend. Acts 1972, ch. 78, § 26; 1994, ch. 181, Part 13, § 62, effective April 4, 1994; 2000, ch. 514, § 38, effective July 14, 2000; 2010, ch. 24, § 1794, effective July 15, 2010.

NOTES TO DECISIONS

  1. Purpose.
  2. Knowledge and Intent.
  3. — Burden of Proof.
  4. Violation.
  5. —Employee.
  6. —Employer.
  7. — —Contractors and Subcontractors.
  8. Safety Appliances.
  9. False Representation.
  10. — Not Related to Physical Condition.
  11. Application of Exemption Statute.
  12. Expert Testimony.
  13. Administrative Law Judge.
  14. Benefit Enhancement.
1. Purpose.

The purpose of this section is not to compensate workers or their families but to penalize those employers who intentionally fail to comply with safety regulations. Ernest Simpson Constr. Co. v. Conn, 625 S.W.2d 850, 1981 Ky. LEXIS 310 ( Ky. 1981 ).

Kentucky Workers’ Compensation Board’s finding that an employer’s workers’ compensation carrier was liable for the 15 percent increase in a workers’ compensation claimant’s award under KRS 342.165(1) was affirmed as there is nothing in the language of KRS 342.165(1) to indicate that the Legislature intends for the increase in compensation to be punitive in nature; KRS 342.165(1) refers to the 15 percent increase only in terms of compensation and it is not akin to punitive damages. AIG/AIU Ins. Co. v. S. Akers Mining Co., 2004 Ky. App. LEXIS 338 (Ky. Ct. App. Nov. 24, 2004), aff'd, 192 S.W.3d 687, 2006 Ky. LEXIS 8 ( Ky. 2006 ).

2. Knowledge and Intent.

In order to have an intentional failure to comply so as to make the 15% penalty applicable, there must be actual knowledge, or such period of time must have elapsed as would create a presumption of knowledge. Gibbs Automatic Moulding Co. v. Bullock, 438 S.W.2d 793, 1969 Ky. LEXIS 420 ( Ky. 1969 ).

Where the claimant’s injury resulted from the violation of a safety regulation promulgated ten days before the injury but the employer had no actual knowledge of the regulation, the Board’s finding that the evidence did not suggest an intentional violation by the employer was properly supported. Gibbs Automatic Moulding Co. v. Bullock, 438 S.W.2d 793, 1969 Ky. LEXIS 420 ( Ky. 1969 ).

Either the employer must know that a safety regulation exists or the regulation must have been in existence long enough to create a presumption of knowledge before the employer may be assessed a penalty for its violation. Barmet of Kentucky, Inc. v. Sallee, 605 S.W.2d 29, 1980 Ky. App. LEXIS 362 (Ky. Ct. App. 1980).

KRS 338.021(2) does not prohibit the assessment of a penalty under the Workmen’s Compensation Act for a violation of a regulation promulgated under the Kentucky Occupational Safety and Health Act, KRS Ch. 338; this does not mean, however, that every violation by an employer of a regulation promulgated under statutory authority should result in an increase in the employer’s liability under the Workmen’s Compensation Act since this section requires an “intentional failure of the employer to comply with any specific statute or lawful regulation made thereunder.” Barmet of Kentucky, Inc. v. Sallee, 605 S.W.2d 29, 1980 Ky. App. LEXIS 362 (Ky. Ct. App. 1980).

Substantial evidence supported the administrative law judge’s inference that the employer’s violation was intentional where there was evidence that supervisory personnel, including claimant’s foreman, were aware of the defective condition of the grader, where substantial evidence supported the conclusion that the grader was moving faster than it would have been were it not defective, thereby contributing to the severity of the accident, and fact that KRS 338.031 was enacted in 1972, precluded an argument that the employer was unaware of its requirements. Therefore, imposition of 15% safety violation penalty was warranted under this section. Apex Mining v. Blankenship, 918 S.W.2d 225, 1996 Ky. LEXIS 19 ( Ky. 1996 ).

3. — Burden of Proof.

Under this section, the burden was on the claimant to prove that employer’s intentional violation of a specific safety statute or regulation contributed to his injury. Cabinet for Workforce Dev. v. Cummins, 950 S.W.2d 834, 1997 Ky. LEXIS 87 ( Ky. 1997 ).

4. Violation.

Employee’s death, which occurred as a result of his clinging to a rope and being lifted by a crane from pit to ground floor, was due to his wilful failure to obey a lawful and reasonable company rule, so as to incur the penalty of 15% reduction in compensation. Ashland Iron & Mining Co. v. McDaniel's Dependents, 202 Ky. 19 , 258 S.W. 943, 1924 Ky. LEXIS 663 ( Ky. 19 24).

Board could reduce compensation by 15% where employee was working in dangerous place in violation of employer’s rules. Johnson v. Hardy-Burlingham Mining Co., 205 Ky. 752 , 266 S.W. 635, 1924 Ky. LEXIS 227 ( Ky. 1924 ).

The intentional violation by the employee of a rule of the employer designed for the safety of the employee shall cause the compensation award to be diminished by 15%. Big Elkhorn Coal Co. v. Burke, 206 Ky. 489 , 267 S.W. 142, 1924 Ky. LEXIS 317 ( Ky. 1924 ).

Where employee left substation and went into shop to warm and, while lying near fire, was burned, he had not violated employer’s rules so as to reduce compensation. Allen v. Columbus Mining Co., 207 Ky. 183 , 268 S.W. 1073, 1925 Ky. LEXIS 49 ( Ky. 1925 ).

A reduction of 15% in compensation was not authorized where employee was operating motor at excessive speed and pushing other cars, causing them to leave the track and knock out some props which caused roof of mine to fall on him, producing injuries from which employee died. Black Mountain Corp. v. Higgins, 226 Ky. 7 , 10 S.W.2d 463, 1928 Ky. LEXIS 17 ( Ky. 1928 ).

Where employee was riding empty car returning to work, which was in violation of company rules, compensation was properly reduced 15%. Standard Elkhorn Coal Co. v. Stidham, 242 Ky. 228 , 46 S.W.2d 120, 1931 Ky. LEXIS 715 ( Ky. 1931 ).

In action by widow of foreman who was electrocuted while changing a fuse, evidence showing that company policy against foreman changing fuses was not enforced and that fuse-pullers were not available supported finding that employer was not entitled to 15% reduction of compensation. Barmet of Kentucky, Inc. v. Sallee, 605 S.W.2d 29, 1980 Ky. App. LEXIS 362 (Ky. Ct. App. 1980).

KRS 338.031 which deals with employer and employee shared obligations to promote and insure workplace safety does not preclude the assessment of a penalty for employer or employee misconduct in the foregoing regard pursuant to this section in a worker’s compensation case involving a Kentucky Occupational Health and Safety Act violation. Whittaker v. McClure, 891 S.W.2d 80, 1995 Ky. LEXIS 6 ( Ky. 1995 ).

Claimant failed to sustain contention that employer intentionally failed to provide ventilation system in vocational school where claimant taught refrigeration, heating and air conditioning where he cited no statute or regulation which required mechanical ventilation or the use of protective gloves or a respirator when working with solvents or sufficient evidence that the employer’s failure to provide this equipment indicated such a gross disregard of patently obvious, basic safety concepts, therefore, there was not an adequate basis to overcome the requirement of this section that a specific statute or regulation concerning it must have been violated in order to justify 15% penalty. Cabinet for Workforce Dev. v. Cummins, 950 S.W.2d 834, 1997 Ky. LEXIS 87 ( Ky. 1997 ).

Kentucky Workers’ Compensation Board’s finding that an employer’s workers’ compensation carrier was liable for the 15 percent increase in a workers’ compensation claimant’s award under KRS 342.165(1) was affirmed as under the plain meaning of the statute, the increase is compensation, not a penalty; injured employees are to be compensated without fear that the employer will be financially unable to provide an adequate remedy. AIG/AIU Ins. Co. v. S. Akers Mining Co., 2004 Ky. App. LEXIS 338 (Ky. Ct. App. Nov. 24, 2004), aff'd, 192 S.W.3d 687, 2006 Ky. LEXIS 8 ( Ky. 2006 ).

Kentucky Workers’ Compensation Board’s finding that an employer’s workers’ compensation carrier was liable for the 15 percent increase in a workers’ compensation claimant’s award under KRS 342.165(1) was affirmed as the policy’s limitation of liability was not controlling in light of KRS 342.340(1), 342.365 , and 342.375 , which require employers to be fully covered by their insurance carriers to ensure adequate compensation for employees and to prevent employers’ funds from depletion before adequate compensation is recovered; contracts have to yield to public policy. AIG/AIU Ins. Co. v. S. Akers Mining Co., 2004 Ky. App. LEXIS 338 (Ky. Ct. App. Nov. 24, 2004), aff'd, 192 S.W.3d 687, 2006 Ky. LEXIS 8 ( Ky. 2006 ).

When a worker was hurt when the worker's supervisor drove a company vehicle after smoking marijuana, the worker was not entitled to a safety violation enhancement because the employer (1) took reasonable steps by obtaining random drug screens and periodically checking driving records before letting employees drive company vehicles and (2) could not reasonably anticipate the supervisor would drive under the influence. Gregory v. A & G Tree Serv., 2018 Ky. App. LEXIS 79 (Ky. Ct. App.), sub. op., 2018 Ky. App. Unpub. LEXIS 971 (Ky. Ct. App. Feb. 16, 2018).

5. —Employee.

Where claimant’s injury was substantially caused by her willful violation of a known safety rule, a 15% penalty reduction was properly imposed on the portion of her award to be paid by the employer pursuant to this section, and the Special Fund was required to pay the entire sum for which it was liable under 342.120 . Whittaker v. McClure, 891 S.W.2d 80, 1995 Ky. LEXIS 6 ( Ky. 1995 ).

Workers' Compensation Board acted appropriately when affirming the ALJ's ruling as it related to a penalty under Ky. Rev. Stat. Ann. § 342.165(1) where any alleged negligence on the employee's part in failing to wear a seatbelt did not give rise to the application of § 342.165(1). Fresenius Med. Care Holdings, Inc. v. Mitchell, 507 S.W.3d 15, 2016 Ky. App. LEXIS 149 (Ky. Ct. App. 2016).

6. —Employer.

In action by widow of worker who was electrocuted while changing fuse and standing on a wet floor, where there was proof from which the Board may have found employer to have been negligent in its efforts to repair a leaky roof, but there was a complete absence of proof that the employer intentionally failed to keep the floor, so far as possible, in a dry condition, no penalty could be imposed on the employer. Barmet of Kentucky, Inc. v. Sallee, 605 S.W.2d 29, 1980 Ky. App. LEXIS 362 (Ky. Ct. App. 1980).

This section imposes a monetary penalty for certain safety violations and penalizes employer misconduct with a 15% increase in each payment of compensation for which the employer would otherwise have been liable, and as such the penalty clearly is not an income benefit and presents no conflict with the limitation on income benefits contained in KRS 342.730 . Apex Mining v. Blankenship, 918 S.W.2d 225, 1996 Ky. LEXIS 19 ( Ky. 1996 ).

There was substantial evidence to support the finding that the employer violated the general duty clause of KRS 338.031 , and that it intentionally failed to comply with a specific statute; therefore, under this section, the employer was subject to a fifteen (15%) enhancement of the benefit owed to the employee. Lexington-Fayette Urban County Gov't v. Offutt, 11 S.W.3d 598, 2000 Ky. App. LEXIS 10 (Ky. Ct. App. 2000).

A statutory penalty was properly imposed where an inspector from the Kentucky Labor Cabinet investigated the accident and issued a citation charging the employer with a violation of KRS 338.031(1)(a), the general duty provision of the Kentucky Occupational Safety and Health Act (KOSHA), notwithstanding that the employer settled the KOSHA citation without admitting a violation. Brusman v. Newport Steel Corp., 17 S.W.3d 514, 2000 Ky. LEXIS 59 ( Ky. 2000 ).

Where the father was killed in a work-related accident when the father’s truck rolled off the road and down an 800-foot embankment, where the employer had violated federal regulations that required a berm of sufficient height to stop the truck, and where, as a result, a 30 percent penalty pursuant to KRS 342.165 was awarded to the beneficiary due to the finding that the employer intentionally violated KRS 338.031(1)(a), substantial evidence supported the determination; during the repair of the berm, which was ongoing at the time of the accident, the employer decided to continue sending employees up the dangerous road instead of waiting until the berm was repaired in all sections, and there was evidence that the financial incentive of keeping the trucks running outweighed a prudent consideration of the hazard posed by the inadequate berm. Hawkeye Constr. Co. v. Little, 151 S.W.3d 360, 2004 Ky. App. LEXIS 345 (Ky. Ct. App. 2004).

Employer’s workers’ compensation insurance carrier was liable for any increase in benefits under KRS 342.165(1) despite a contractual term to the contrary since the Legislature has determined that an employer’s entire liability for benefits must be secured as a matter of public policy under KRS 342.340 , 342.365 , and 342.375 . AIG/AIU Ins. Co. v. South Akers Mining Co., LLC, 192 S.W.3d 687, 2006 Ky. LEXIS 8 ( Ky. 2006 ).

When the deceased employee’s estate received benefits pursuant to KRS 342.750(6), the amount received by the estate was properly increased by 30 percent, pursuant to KRS 342.165(1), when there was evidence that the employee’s death was caused by the employer’s safety violations. Payments under KRS 342.750(6) could be considered as “compensation,” as contemplated by KRS 342.011(14) for purposes of applying the statutory increase under KRS 342.165(1). Realty Improvement Co. v. Raley, 194 S.W.3d 818, 2006 Ky. LEXIS 158 ( Ky. 2006 ).

KRS 342.165(1) applied as substantial evidence supported a finding that an accident resulted, in part, from the absence of warning devices, which would have alerted a workers’ compensation claimant of the his proximity to an unsupported roof and helped prevent the claimant from traveling within 48 inches of the last row of roof support; the accident resulted to some degree from the employer’s intentional failure to comply with 30 CFR § 75.208, notwithstanding the failure of the Kentucky Office of Mine Safety and Licensing to find a violation of 805 KAR § 5:070. Chaney v. Dags Branch Coal Co., 244 S.W.3d 95, 2008 Ky. LEXIS 9 ( Ky. 2008 ).

Contract between the insurance carrier and the employer required the employer to reimburse the carrier for payments due to the employer’s failure to comply with safety regulations, involving a lower premium than if coverage for benefits awarded under KRS 342.165(1) had been included; having paid benefits, the carrier sought reimbursement from the employer under the contract. Ky. Associated Gen. Contrs. Self-Insurance Fund v. Music Constr., Inc., 299 S.W.3d 586, 2009 Ky. LEXIS 251 ( Ky. 2009 ).

ALJ correctly applied the four-part Offutt test to determine that the employer violated the general duties provision, KRS 338.031 , and this finding allowed the ALJ to enhance the employee’s weekly income benefits pursuant to KRS 342.165(1); the evidence was sufficient to prove that the employer intentionally violated § 338.031 (1)(a). Hornback v. Hardin Mem. Hosp., 2013 Ky. LEXIS 233 (Ky. May 23, 2013), sub. op., 411 S.W.3d 220, 2013 Ky. LEXIS 577 ( Ky. 2013 ), modified, 2013 Ky. LEXIS 576 (Ky. Oct. 24, 2013).

Workers' Compensation Board erred in finding that an employer's settlement of a Kentucky Occupational Safety and Health Administration enforcement action and payment of a fine was equivalent to the finding of a safety violation where the ALJ had not found the claimant's testimony credible, the claimant was not qualified to establish the existence of a safety requirement, and the ALJ found no evidentiary support for the citations with respect to a retaining wall. VanMeter Contr., Inc. v. Groce, 2017 Ky. App. LEXIS 70 (Ky. Ct. App.), sub. op., 2017 Ky. App. Unpub. LEXIS 937 (Ky. Ct. App. Apr. 14, 2017).

7. — —Contractors and Subcontractors.

Although the employee of a subcontractor was killed as a result of a violation of safety regulations by the general contractor, his widow was not entitled to recover the penalty imposed by this section from the general contractor since the general contractor was not the decedent’s employer as required by this section and the subcontractor had obtained compensation insurance which, under KRS 342.610 , precluded the general contractor from being held liable. Ernest Simpson Constr. Co. v. Conn, 625 S.W.2d 850, 1981 Ky. LEXIS 310 ( Ky. 1981 ).

Employee of a temporary employment agency could not obtain an enhancement of workers’ compensation benefits due to substantial evidence of a host employer’s safety violations severely injuring the employee because (1) the agency was the employee’s sole employer, and (2) nothing showed the agency knew of, approved, directed, or acquiesced in the violations. Maysey v. Express Servs., 2020 Ky. App. LEXIS 23 (Ky. Ct. App. Feb. 21, 2020).

8. Safety Appliances.

Particularly where evidence demonstrated that the operator of a piece of heavy equipment could not control its speed with reasonable precision because the machine’s throttle was fastened wide open, the decelerator pedal was not in proper condition and the brakes were defective: throttle and brakes most certainly could and should have been viewed as safety appliances. Apex Mining v. Blankenship, 918 S.W.2d 225, 1996 Ky. LEXIS 19 ( Ky. 1996 ).

9. False Representation.

Because claimant made a false representation on his medical history concerning a prior diagnosis of pneumoconiosis, his claim was barred by KRS 342.316(6) (now (7)). The three-prong test set forth in Divita v. Hopple Plastics, 858 S.W.2d 214, 1993 Ky. App. LEXIS 93 (Ky. App. 1993) and codified in subsection (2) of this section was not applicable to this situation as it applies to false representations concerning prior injuries; KRS 342.316(6) (now (7)) applies to false representations concerning occupational disease. Dobson v. McCoy Coal Co., 931 S.W.2d 805, 1996 Ky. LEXIS 106 ( Ky. 1996 ).

A workers’ compensation claim was properly dismissed by the Administrative Law Judge on the ground that the claimant falsely represented her physical condition on a written questionnaire where the claimant sought benefits for injuries she sustained to her neck, back, and arms when a cherry picker she was driving struck a hole in the floor, yet made knowing false representations by denying that she had been off work due to work injuries, failed to list six (6) operations performed on her upper extremities, and denied ever having been troubled with recurring back, knee, and shoulder problems. Gutermuth v. Excel, 2000 Ky. App. LEXIS 61 (Ky. Ct. App. June 2, 2000), aff'd, 43 S.W.3d 270, 2001 Ky. LEXIS 55 ( Ky. 2001 ).

The claimant was not entitled to compensation for a neck injury with complaints of arm pain where, when completing a questionnaire and undergoing a preemployment physical examination, she failed to reveal the full extent of prior injuries to her arms or to reveal work restrictions imposed by her physician, and also failed to reveal her longstanding history of problems with her neck, back, and shoulders. Gutermuth v. Excel, 43 S.W.3d 270, 2001 Ky. LEXIS 55 ( Ky. 2001 ).

ALJ erred by finding for the employer under KRS 342.165(2)(c) and by dismissing the employee’s claim without further consideration because no medical evidence indicated that prior lumbar surgeries or exceeded a lumbar lifting restriction would cause a neck injury. Baptist Hosp. East v. Possanza, 298 S.W.3d 459, 2009 Ky. LEXIS 289 ( Ky. 2009 ).

Because there was no dispute that an employee’s workers’ compensation claim was for a neck injury and that a misrepresentation by the employee in a job application related to a prior low back condition, and because there was no relationship between the back condition and the neck injury, the employer failed to show the causal connection required by KRS 342.165(2)(c) to deny the employee’s claim for benefits. Baptist Hosp. East v. Possanza, 2009 Ky. App. LEXIS 127 (Ky. Ct. App. Aug. 7, 2009), aff'd, 298 S.W.3d 459, 2009 Ky. LEXIS 289 ( Ky. 2009 ).

10. — Not Related to Physical Condition.

Administrative law judge erred in dismissing a claim for workers’ compensation benefits based upon a finding that the claimant had misrepresented her educational level on the employment application, thereby precluding the formation of a contract of employment. Clarion Mfg. Corp. of Am. v. Justice, 971 S.W.2d 288, 1998 Ky. LEXIS 43 ( Ky. 1998 ).

11. Application of Exemption Statute.

Workers’ compensation death benefits were not exempt from the claims of creditors because the KRS 342.180 statutory exemption which prevented attachment by creditors of compensation paid to the worker did not apply to the funds paid pursuant to KRS 342.750(6) once paid to the estate; the purpose of the penalty aspect of the payment imposed upon the employer, as mandated by KRS 342.165 , was served when payment was made pursuant to KRS 342.750(6). There was no language that the exemption from attachment by creditors provided for in KRS 342.180 applied to the monies once paid to the estate and there was nothing that suggested the laws of inheritance controlling estates should not have applied. Williams v. Farmers Stockyard, Inc., 297 S.W.3d 586, 2009 Ky. App. LEXIS 126 (Ky. Ct. App. 2009).

12. Expert Testimony.

KRS 342.165(1) does not require expert testimony to prove that an employer’s violation of a known safety regulation helped to cause an accident in which its employee was injured, and employers are presumed to know what specific state and federal statutes and regulations govern their workplace; thus, an employer’s violation of such a provision implies the intent to do so. Therefore, there was no error in the decision to remand a claim for further consideration of the alleged safety violation where the record indicated that nothing covered or barricaded the opening through which a claimant fell; having failed to do so previously, an administrative law judge had to analyze the evidence to determine what regulation governed the facts, whether the regulation required the employer to have some form of fall protection in place at the time of the claimant’s accident, and, if so, whether the failure to have such protection helped to cause the claimant’s accident. Abel Verdon Constr. v. Rivera, 348 S.W.3d 749, 2011 Ky. LEXIS 116 ( Ky. 2011 ).

13. Administrative Law Judge.

Court of appeals, which held that a claimant was not entitled to an enhancement of her workers’ compensation award pursuant to KRS 342.165(1), did not impermissibly substitute its judgment for that of the administrative law judge (ALJ). However, there was more than sufficient reason to reverse the court of appeals, as the ALJ reached the correct result using the Offutt test. Hornback v. Hardin Mem. Hosp., 411 S.W.3d 220, 2013 Ky. LEXIS 577 ( Ky. 2013 ).

14. Benefit Enhancement.

ALJ properly determined that the Kentucky Coal Employers Self-Insurance Fund was liable for a worker's compensation award, including the 30 percent benefit enhancement under Ky. Rev. Stat. Ann. § 342.165(1), where case law clearly established that an award of benefits under § 342.165(1) was increased compensation owed to the worker, not a penalty against the employer, and thus, the Fund could not rely on Ky. Rev. Stat. Ann. § 342.910(2) to exempt itself from paying the benefit enhancement. McCoy Elkhorn Coal Co. v. Sargent, 2017 Ky. App. LEXIS 619 (Ky. Ct. App.), sub. op., 2017 Ky. App. Unpub. LEXIS 954 (Ky. Ct. App. Oct. 13, 2017).

Kentucky Coal Employers Self-Insurers Guaranty Fund was responsible for a coal miner’s survivors enhanced benefits under Ky. Rev. Stat. Ann. § 342.165(1) where Ky. Rev. Stat. Ann. §§ 342.906(3), (4), and (9) obligated the Fund to step in and meet, without qualification, the obligations of its insolvent member, i.e., the miner’s employer, the enhancement in § 342.165(1) was not a penalty subject to Ky. Rev. Stat. Ann. § 342.910(2), and § 342.910(2) did not apply to the interest on the amounts owed. McCoy Elkhorn Coal v. Sargent, 553 S.W.3d 802, 2018 Ky. LEXIS 351 ( Ky. 2018 ).

Cited:

Preston v. Elm Hill Meats, Inc., 483 S.W.2d 136, 1972 Ky. LEXIS 176 ( Ky. 1972 ); Childers v. International Harvester Co., 569 S.W.2d 675, 1977 Ky. App. LEXIS 927 (Ky. Ct. App. 1977); Nicely v. McBrayer, McGinnis, Leslie, & Kirkland, 163 F.3d 376, 1998 U.S. App. LEXIS 31482 (6th Cir. 1998); Bradley v. Commonwealth, 301 S.W.3d 27, 2009 Ky. LEXIS 326 ( Ky. 2009 ).

NOTES TO UNPUBLISHED DECISIONS

1. Violation.
2. —Employer.

Unpublished decision: Workers’ Compensation Board did not err in affirming an administrative law judge’s (ALJ) award of benefits to an employee because the record supported the ALJ’s conclusion that the employee’s supervisor failed to comply with lock-out/tag-out procedures, which ultimately caused the employee's injury; the employer “intent” was inferred from the fact that a safety violation occurred. Ready Elec. v. Scharringhausen, 2016 Ky. App. LEXIS 139 (Ky. Ct. App. Aug. 12, 2016), aff'd, 2017 Ky. Unpub. LEXIS 29 (Ky. June 15, 2017).

Research References and Practice Aids

Cross-References.

Safety and health of employees, KRS Ch. 338.

Kentucky Bench & Bar.

Lowther and Lowther, Workplace Injuries: Safety Penalties and Workers’ Compensation Claims, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 22.

Kentucky Law Journal.

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

Northern Kentucky Law Review.

Comments, Kentucky Workmen’s Compensation Benefits — Apportionment and Computation, 6 N. Ky. L. Rev. 91 (1979).

Notes, Torts — Intentional Torts in the Workplace — Further Erosion of the Worker’s Compensation Act Exclusive Remedy Bar to Tort Actions — Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St. 2d 608, 433 N.E.2d 572, 1982 Ohio LEXIS 620 (1982), 10 N. Ky. L. Rev. 355 (1983).

Matheny, Achieving Safer Workplaces by Expanding Employers’ Tort Liability Under Workers’ Compensation Laws, 19 N. Ky. L. Rev. 457 (1992).

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Kentucky Occupational Safety and Health, § 286.00.

ALR

Employer’s tort liability to worker for concealing workplace hazard or nature or extent of injury. 9 A.L.R.4th 778.

342.170. Minor illegally employed. [Repealed.]

Compiler’s Notes.

This section (4911) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973.

342.175. Lien for compensation.

All rights of compensation granted by this chapter shall have the same preference or priority for the whole thereof against the assets of the employer as is allowed by law for any unpaid wages for labor.

History. 4912.

NOTES TO DECISIONS

  1. Purpose.
  2. Time Limitations.
  3. Priority.
  4. Right of Subrogation.
1. Purpose.

This section was intended to protect the disabled employee’s compensation for loss of power to earn a livelihood, and should be liberally construed. Adkins v. Carol Mining Co., 281 Ky. 328 , 136 S.W.2d 32, 1940 Ky. LEXIS 40 ( Ky. 1940 ).

2. Time Limitations.

Although this section places all rights of compensation granted under this chapter on the same priority basis against the assets of an employer as claims for unpaid wages for labor, a compensation claimant against receiver of insolvent coal company who did not institute action or file claim with receiver within 60 days from time property came into latter’s hands was not entitled to priority over mortgagee, since under this section such claimant must follow procedure prescribed by law for an employee claiming wages as due. Freeman v. Craft, 220 Ky. 15 , 294 S.W. 822, 1927 Ky. LEXIS 480 ( Ky. 1927 ).

KRS 376.160 does not restrict the priority of employees’ liens for workers’ compensation, as provided for by this section, to claims accruing within six (6) months before the distribution of the employer’s property among his creditors. Adkins v. Carol Mining Co., 281 Ky. 328 , 136 S.W.2d 32, 1940 Ky. LEXIS 40 ( Ky. 1940 ).

3. Priority.

Lien on property of employer to secure unemployment compensation contributions, under KRS 341.310 , is superior both to the lien on the employer’s assets to secure worker’s compensation awards, under this section, and to the lien securing laborers’ wages, under KRS 376.150 and 376.160 . Commonwealth ex rel. Unemployment Compensation Com. v. Durham, 290 Ky. 408 , 161 S.W.2d 610, 1942 Ky. LEXIS 411 ( Ky. 1942 ).

A claim against a bankrupt debtor for a workers’ compensation claim paid to an injured employee of the debtor pursuant to an agreed order approving settlement between the the debtor and the employee is not entitled to priority in a bankruptcy proceeding. In re Bersaglia, 254 B.R. 376, 2000 Bankr. LEXIS 1275 (Bankr. E.D. Ky. 2000 ).

4. Right of Subrogation.

Sureties on employer’s self-insurer’s bond who had paid claims under workers’ compensation law in full were entitled to subrogate to rights of claimants against estate of insolvent employer. Non-Marine Underwriters at Lloyd's London v. Carrs Fork Coal Co., 421 S.W.2d 852, 1967 Ky. LEXIS 86 ( Ky. 1967 ).

Cited:

In re Hall-Luton Coal Mining Co., 29 F. Supp. 484, 1939 U.S. Dist. LEXIS 2342 (D. Ky. 1939 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

342.180. Compensation claim not assignable — Exempt from debts — Exception.

No claim for compensation under this chapter shall be assignable, except court or administratively-ordered child support pursuant to KRS 403.212 . All compensation and claims therefor, except child support obligations, shall be exempt from all claims of creditors.

History. 4913; 1994, ch. 330, § 8, effective July 15, 1994.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Application.
  3. Recovery by Administrator.
  4. Levy of Execution.
  5. Setoff.
  6. Garnishment.
  7. Marital Property.
  8. Reimbursement Provision.
1. Constitutionality.

The prohibition contained in this section against assigning a claim for compensation does not invade the constitutional right to contract. Workmen's Compensation Board v. Abbott, 212 Ky. 123 , 278 S.W. 533, 1925 Ky. LEXIS 1088 ( Ky. 1925 ).

2. Application.

This section does not apply where the Crime Victims Compensation Board is subrogated to a crime victim’s right to workers’ compensation benefits. Hulsey v. Commonwealth Crime Victims Compensation Bd., 628 S.W.2d 890, 1982 Ky. App. LEXIS 203 (Ky. Ct. App. 1982).

Workers’ compensation death benefits were not exempt from the claims of creditors because the KRS 342.180 statutory exemption which prevented attachment by creditors of compensation paid to the worker did not apply to the funds paid pursuant to KRS 342.750(6) once paid to the estate; the purpose of the penalty aspect of the payment imposed upon the employer, as mandated by KRS 342.165 , was served when payment was made pursuant to KRS 342.750(6). There was no language that the exemption from attachment by creditors provided for in KRS 342.180 applied to the monies once paid to the estate and there was nothing that suggested the laws of inheritance controlling estates should not have applied. Williams v. Farmers Stockyard, Inc., 297 S.W.3d 586, 2009 Ky. App. LEXIS 126 (Ky. Ct. App. 2009).

Insurer’s claim had to be rejected that the employee was precluded from giving the employee’s benefits to the third-party by KRS 342.180 , which prohibited the assignment of a claim for workers’ compensation benefits. The agreement between the employee and the third-party was not an assignment of a workers’ compensation claim, but was a transfer of compensation under the compensation agreement. Ky. Employers' Mut. Ins. v. Novation Capital, LLC, 361 S.W.3d 320, 2011 Ky. App. LEXIS 260 (Ky. Ct. App. 2011), overruled in part, Am. Gen. Life Ins. Co. v. DRB Capital, LLC, 562 S.W.3d 916, 2018 Ky. LEXIS 535 ( Ky. 2018 ).

3. Recovery by Administrator.

The administrator of estate of compensated decedent may recover accrued compensation where the decedent died intestate leaving no dependents. Brewer v. Caudill, 314 S.W.2d 550, 1958 Ky. LEXIS 308 ( Ky. 1958 ).

4. Levy of Execution.

Property purchased with lump-sum compensation payment is not exempt from levy of execution. Ball v. Smiddy, 249 S.W.2d 715, 1952 Ky. LEXIS 838 ( Ky. 1952 ).

5. Setoff.

Compensation benefits are not subject to setoff by employer. Beattyville Co. v. Sizemore, 203 Ky. 7 , 261 S.W. 620, 1924 Ky. LEXIS 834 ( Ky. 1924 ).

6. Garnishment.

Where a judgment debtor deposits a worker’s compensation payment into a bank checking account, the funds are exempt from garnishment by the judgment creditor since the exemption provided by this section extends its protection to deposits in bank checking accounts so long as those deposits can be identified or traced to payments of exempt workers’ compensation funds. Matthews v. Lewis, 617 S.W.2d 43, 1981 Ky. LEXIS 255 ( Ky. 1981 ).

7. Marital Property.

In enacting its no-fault divorce statute, the Kentucky General Assembly specifically excluded certain kinds of property from the category of “marital property” and workers’ compensation benefits, in the form of either a settlement or ongoing benefits, were not excluded; accordingly, there was a legislative intent not to exclude such benefits. Thus, certificates of deposit purchased by husband with proceeds of workers’ compensation award were marital property. Quiggins v. Quiggins, 637 S.W.2d 666, 1982 Ky. App. LEXIS 236 (Ky. Ct. App. 1982).

8. Reimbursement Provision.

Reimbursement provision in settlement agreement between employer and employee, which operated as an assignment of a portion of the benefits received pursuant to the worker’s subsequent compensation award against the Special Fund did not violate either the purpose or the language of this section and was in accord with the purposes of the Workers’ Compensation Act. The agreement did not contemplate an assignment of the worker’s claim against the Special Fund to the employer, but rather an assignment of whatever portion of the worker’s recovery had been paid by the employer but was determined by the ALJ to be the responsibility of the Special Fund. Newberg Sarcione, 865 S.W.2d 317, 1993 Ky. LEXIS 155 ( Ky. 1993 ).

Cited:

Smith v. Vanover, 264 S.W.2d 884, 1954 Ky. LEXIS 709 ( Ky. 1954 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Bland, The Bankruptcy Reform Act of 1978: An Overview, Vol. 44, No. 1, January 1980, Ky. Bench & Bar 8.

Northern Kentucky Law Review.

Notes, Workers' Compensation — Marital Property — Johnson v. Johnson, 10 N. Ky. L. Rev. 531 (1983).

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

342.185. Notice of accident — Claim for compensation — Limitation — Cumulative trauma injury.

  1. Except as provided in subsections (2) and (3) of this section, no proceeding under this chapter for compensation for an injury or death shall be maintained unless a notice of the accident shall have been given to the employer as soon as practicable after the happening thereof and unless an application for adjustment of claim for compensation with respect to the injury shall have been made with the department within two (2) years after the date of the accident, or in case of death, within two (2) years after the death, whether or not a claim has been made by the employee himself or herself for compensation. The notice and the claim may be given or made by any person claiming to be entitled to compensation or by someone in his or her behalf. If payments of income benefits have been made, the filing of an application for adjustment of claim with the department within the period shall not be required, but shall become requisite within two (2) years following the suspension of payments or within two (2) years of the date of the accident, whichever is later.
  2. The right to compensation under this chapter resulting from work-related exposure to the human immunodeficiency virus shall be barred unless notice of the injurious exposure is given in accordance with subsection (1) of this section and unless an application for adjustment of claim for compensation shall have been made with the commissioner within five (5) years after the injurious exposure to the virus.
  3. The right to compensation under this chapter resulting from work-related exposure to cumulative trauma injury shall be barred unless notice of the cumulative trauma injury is given within two (2) years from the date the employee is told by a physician that the cumulative trauma injury is work-related. An application for adjustment of claim for compensation with respect to the injury shall have been made with the department within two (2) years after the employee is told by a physician that the cumulative trauma injury is work-related. However, the right to compensation for any cumulative trauma injury shall be forever barred, unless an application for adjustment of claim is filed with the commissioner within five (5) years after the last injurious exposure to the cumulative trauma.

HISTORY: 4914: amend. Acts 1944, ch. 82, § 4; 1948, ch. 151, § 2; 1960, ch. 147, § 13; 1972, ch. 78, § 27; 1974, ch. 93, § 2; 1980, ch. 104, § 8, effective July 15, 1980; 1982, ch. 278, § 20, effective July 15, 1982; 1994, ch. 181, Part 14, § 69, effective April 4, 1994; 2010, ch. 24, § 1795, effective July 15, 2010; 2018 ch. 40, § 5, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). This statute was amended in Section 5 of 2018 Ky. Acts ch. 40. Subsection (2) of Section 20 of that Act reads, “Sections 2, 4, and 5 and subsection (7) of Section 13 of this Act are remedial and shall apply to all claims irrespective of the date of injury or last exposure, provided that, as applied to any fully and finally adjudicated claim, the amount of indemnity ordered or awarded shall not be reduced and the duration of medical benefits shall not be limited in any way.”

NOTES TO DECISIONS

Analysis

  1. Construction.
  2. Application.
  3. Notice.
  4. — Mandatory.
  5. — Purpose.
  6. — Timeliness.
  7. —Sufficiency.
  8. — Waiver.
  9. Claim for Compensation.
  10. —Statute of Limitations.
  11. — — Mandatory.
  12. — — Particular Claimants.
  13. — — Tolling of Statute.
  14. — — — Voluntary Payments.
  15. — — — Minors.
  16. — — Latent Condition.
  17. —Cumulative Injury.
  18. — — Occupational Disease.
  19. — —Estoppel.
  20. Burden of Proof.
  21. Review of Award.
  22. Medical Evidence.
1. Construction.

The words “as soon as practicable” should be liberally construed so as not to unjustly defeat compensation to which meritorious claimant is entitled. Bates & Rogers Const. Co. v. Allen, 183 Ky. 815 , 210 S.W. 467, 1919 Ky. LEXIS 557 ( Ky. 1919 ).

The words “unless a claim for compensation with respect to such injury shall have been made within one year (now two (2) years) after the date of the accident, or, in case of death, within one year (now two (2) years) after such death” refer to the making or filing of the claim with the employer and not to the filing of the application for adjustment of compensation with the Workers' Compensation Board. Russo v. Leckie Collieries Co., 269 Ky. 641 , 108 S.W.2d 661, 1937 Ky. LEXIS 656 ( Ky. 1937 ).

The word “accident,” in provision of this section that claim must be made within one year after accident, does not mean the resulting injury but the occurrence itself, the happening of which causes the injury. Fiorella v. Clark, 298 Ky. 817 , 184 S.W.2d 208, 1944 Ky. LEXIS 1011 ( Ky. 1944 ).

This section should be liberally construed in favor of the employee to effectuate the beneficent purposes of this law. Bartley v. Bartley, 274 S.W.2d 48, 1954 Ky. LEXIS 1219 ( Ky. 1954 ).

The notice provision of this section should be construed liberally in favor of the employee in order to effectuate the beneficent purposes of the workers’ compensation law. Lewallen v. Peabody Coal Co., 306 S.W.2d 262, 1957 Ky. LEXIS 25 ( Ky. 1957 ).

Authority which addresses the relevance of employer prejudice in claims for occupational disease, where the notice requirement is controlled by KRS 342.316 , is not dispositive with regard to claims for injury which are controlled by this section. Smith v. Cardinal Constr. Co., 13 S.W.3d 623, 2000 Ky. LEXIS 36 ( Ky. 2000 ).

In a case of a gradual injury such as a hearing loss, the two-year statute of limitations set forth in KRS 342.185(1) acts as both a limitations period and as a statute of repose for the employer. Manalapan Mining Co. v. Lunsford, 204 S.W.3d 601, 2006 Ky. LEXIS 200 ( Ky. 2006 ), overruled in part, Consol of Ky. v. Goodgame, 479 S.W.3d 78, 2015 Ky. LEXIS 1863 ( Ky. 2015 ).

KRS 342.185 requires a claimant under the Kentucky Workers’ Compensation Act to give notice to an employer within a certain time period in order to proceed with a claim; nothing in the provision suggests that it creates a right to make a claim for “gross negligence” under the Act. Thus, an injured employee’s claim for “gross negligence” in the handling of his workers’ compensation claim was dismissed for failure to state a claim. McBroom v. Ky. League of Cities Ins. Serv., 2006 U.S. Dist. LEXIS 3532 (W.D. Ky. Jan. 26, 2006).

This statute acts as both a statute of limitations and a statute of repose. For single traumatic event injuries, the running of both periods begins on the date of accident; for cumulative trauma injuries the running of both periods begins on the date the injured employee is advised that he has suffered a work-related cumulative trauma injury (overruling Manalapan Mining Co. v. Lunsford, 204 S.W.3d 601 ( Ky. 2006 )). Consol of Ky. v. Goodgame, 479 S.W.3d 78, 2015 Ky. LEXIS 1863 ( Ky. 2015 ).

2. Application.

Limitations prescribed by the workers’ compensation law did not apply to actions for breach of union contract requiring coverage for occupational diseases. Blankenship v. Majestic Collieries Co., 399 S.W.2d 699, 1966 Ky. LEXIS 474 ( Ky. 1966 ).

An employee was not required to give notice as required by KRS 342.185 to the employer before filing a claim for reopening a claim pursuant to KRS 342.125 . GE v. Turpen, 245 S.W.3d 781, 2006 Ky. App. LEXIS 379 (Ky. Ct. App. 2006).

KRS 342.040(1) and KRS 342.185(1), operated in tandem and dictated that the employer not be allowed to claim that the employee’s application for benefits was not timely filed. Since the employer did not strictly comply with those statutes because it did not promptly transmit the proper form to the Office of Workers’ Claims (now Department of Workers’ Claims), it transmitted a form that was improperly coded, and the employer’s insurer failed to submit a corrected form, the employer was estopped from claiming that the employee’s failure to file an application within two years of the termination of temporary total disability payments meant that the employee’s current application was not timely filed. Ky. Container Serv. v. Ashbrook, 265 S.W.3d 793, 2008 Ky. LEXIS 185 ( Ky. 2008 ).

Employee could not obtain relief from an erroneous award of KRS 342.730 permanent total disability benefits that was entered, as the authority under which the employee tried to reopen the award did not apply to workers’ compensation proceedings. While the employee could have moved for reconsideration of the award pursuant to KRS 342.185 , the employee failed to do so and, thus, was not entitled to relief from the erroneous award. Burroughs v. Martco, 339 S.W.3d 461, 2011 Ky. LEXIS 74 ( Ky. 2011 ).

3. Notice.

Notice given the employer by employee of a physical injury sustained by him carries with it notice of all conditions which may reasonably be anticipated to result from it. Dawkins Lumber Co. v. Hale, 221 Ky. 755 , 299 S.W. 991, 1927 Ky. LEXIS 840 ( Ky. 1927 ).

The injured employee must give notice of injury; mere notice of accident is not enough. Kaufman-Straus Co. v. Bennett, 275 Ky. 264 , 121 S.W.2d 1, 1938 Ky. LEXIS 393 ( Ky. 1938 ).

The requirement of notice includes the specific injury for which the employee is claiming compensation for disability. Proctor & Gamble Mfg. Co. v. Little, 357 S.W.2d 866, 1962 Ky. LEXIS 153 ( Ky. 1962 ).

The requirement of this section that notice of accident be given to the employer as soon as practicable means that notice of the specific injury for which the employee is claiming compensation must be given. Reliance Diecasting Co. v. Freeman, 471 S.W.2d 311, 1971 Ky. LEXIS 237 ( Ky. 1971 ).

Where the employee had experienced a harmful change in his body due to the prolonged stress to his leg associated with his work as a coal miner, the Workers’ Compensation Board correctly concluded that his claim for benefits was the result of a work-related injury subject to the notice provisions of this section; the fact that there was no single, traumatic incident that caused his disability was of no significance to the characterization of the claim as one for a work-related injury as opposed to an occupational disease. Pittsburgh & Midway Coal Mining Co. v. Chappel, 714 S.W.2d 485, 1986 Ky. App. LEXIS 1133 (Ky. Ct. App. 1986).

KRS 342.038 requires an employer to notify Workers’ Compensation Board within one week after the occurrence and knowledge, as provided in KRS 342.185 to 342.200 , of an injury to an employee causing his absence from work for more than one day; however, employer’s obligation is not triggered merely by the notice of an accident as provided in KRS 342.185 to KRS 342.200 , but by said notice coupled with an absence from work more than one day. When the employee is not absent from work until some time after the accident, the employer may be legitimately unaware that the absence is due to the previous occupational injury. Newberg v. Hudson, 838 S.W.2d 384, 1992 Ky. LEXIS 129 ( Ky. 1992 ).

Where employer had actual notice of injury in 1990 when claimant reported the condition to her supervisor, and claimant’s attorney formally notified employer as soon as was practicable after learning of the doctor’s diagnosis and the relationship to claimant’s work, there was substantial evidence to support court’s finding of timely notice of injury. Newberg v. Sleets, 899 S.W.2d 495, 1995 Ky. App. LEXIS 85 (Ky. Ct. App. 1995).

Where the employee notified the employer of the work-related injury prior to diagnosis of the injury, the injury became manifest on the date of the employee’s notification of the employer pursuant to KRS 342.185 , and workers’ compensation benefits were due at that point. Am. Printing House for the Blind v. Brown, 2003 Ky. App. LEXIS 227 (Ky. Ct. App. Sept. 19, 2003), aff'd, 142 S.W.3d 145, 2004 Ky. LEXIS 191 ( Ky. 2004 ).

4. — Mandatory.

The provision of this section requiring notice of injury is mandatory and, if there is delay in giving notice, the burden is upon the injured party to explain why he did not give notice sooner. Buckles v. Kroger Grocery & Baking Co., 280 Ky. 644 , 134 S.W.2d 221, 1939 Ky. LEXIS 185 ( Ky. 1939 ).

The provision of this section that notice of the accident must be given the employer as soon as practicable after the happening is mandatory and, if there is a delay in giving notice, the burden is upon the injured person to show it was not practicable to give notice. T. W. Samuels Distillery Co. v. Houck, 296 Ky. 323 , 176 S.W.2d 890, 1943 Ky. LEXIS 153 ( Ky. 1943 ).

Compliance with this section is mandatory and, if there is a delay in giving notice, the burden is upon the complainant to establish it was not practicable to notify sooner. Sexton v. Black Star Coal Corp., 296 S.W.2d 450, 1956 Ky. LEXIS 200 ( Ky. 1956 ).

5. — Purpose.

The purpose of the requirement that the employer shall have notice of the injury as soon as practicable is to afford him an opportunity to make a prompt investigation of the accident and to place the employee under the care of a competent physician in order to minimize his disability and the employer’s consequent liability. Turner, Day & Woolworth Handle Co. v. Morris, 267 Ky. 217 , 101 S.W.2d 921, 1937 Ky. LEXIS 296 ( Ky. 1937 ).

Where employee sustains hernia in course of employment, employer is entitled to receive early notice thereof so that he may ascertain whether the hernia existed before the accident and minimize the employee’s disability by having him treated. Buckles v. Kroger Grocery & Baking Co., 280 Ky. 644 , 134 S.W.2d 221, 1939 Ky. LEXIS 185 ( Ky. 1939 ).

This section requires prompt notice of an injury so as to give an employer the opportunity to investigate the circumstances of the claim, and this requirement ought not to be dispensed with as a matter of course whenever there has been a failure to give the notice. T. W. Samuels Distillery Co. v. Houck, 296 Ky. 323 , 176 S.W.2d 890, 1943 Ky. LEXIS 153 ( Ky. 1943 ).

The purpose of the notice requirement is to give the employer an early opportunity to ascertain by examination the nature and extent of any claimed injury. Whittle v. General Mills, Inc., 252 S.W.2d 55, 1952 Ky. LEXIS 986 ( Ky. 1952 ).

Under this section notice must be given as soon as practicable after the occurrence of the accident under the theory that its purpose is: (1) to give the employer an opportunity to place the employee under the care of competent physicians to minimize his disability and the employer’s subsequent liability; (2) to enable the employer to investigate at an early time the facts pertaining to the injury; and (3) to prevent the filing of fictitious claims when lapse of time makes proof of lack of genuineness difficult. Harlan Fuel Co. v. Burkhart, 296 S.W.2d 722, 1956 Ky. LEXIS 227 ( Ky. 1956 ).

6. — Timeliness.

This section does not require notice of the accident to be given to the employer on the same day of the accident or even immediately but only “as soon as practicable” after the happening of the accident. Clover Fork Coal Co. v. Washington, 247 Ky. 848 , 57 S.W.2d 994, 1933 Ky. LEXIS 456 ( Ky. 1933 ).

Where employee noticed a knot, went on with his work until it troubled him one month later, informed his foreman who treated his complaint lightly, then continued work over three more months at which time he saw company doctor and was operated on for hernia, there was no such delay in giving notice as to preclude compensation, since delay was reasonably caused, foreman had knowledge of employee’s injury, and company was not prejudiced by such delay. Hay v. Swiss Oil Co., 249 Ky. 165 , 60 S.W.2d 385, 1933 Ky. LEXIS 498 ( Ky. 1933 ).

Where employee was injured on February 10, consulted a chiropractor soon afterwards, commenced consulting physicians in April, but did not give notice of injury to employer until July, the notice was not given as soon as practicable. Kaufman-Straus Co. v. Bennett, 275 Ky. 264 , 121 S.W.2d 1, 1938 Ky. LEXIS 393 ( Ky. 1938 ).

Whether notice of accident or injury is given to the employer “as soon as practicable” depends upon the facts and circumstances of each case. Buckles v. Kroger Grocery & Baking Co., 280 Ky. 644 , 134 S.W.2d 221, 1939 Ky. LEXIS 185 ( Ky. 1939 ); Marc Blackburn Brick Co. v. Yates, 424 S.W.2d 814, 1968 Ky. LEXIS 469 ( Ky. 1968 ).

Where employee sustained hernia but did not notify employer until 54 days after physician informed him of his condition, since he wished to continue to work during the holiday season, he was not entitled to compensation. Buckles v. Kroger Grocery & Baking Co., 280 Ky. 644 , 134 S.W.2d 221, 1939 Ky. LEXIS 185 ( Ky. 1939 ).

Where claimant was injured while employed by employer and, within three or four (4) weeks after his injury, was examined by a doctor who correctly advised that claimant was suffering from a herniated disc, and again was examined by a doctor some three (3) months after the injury who made same diagnosis but claimant did not advise his employer of the claimed injury until some five months following the injury, claimant did not give notice as soon as practicable. Whittle v. General Mills, Inc., 252 S.W.2d 55, 1952 Ky. LEXIS 986 ( Ky. 1952 ).

Where the company knew from the first, through a fellow worker, that an employee had left its mine when in great pain, and the employee gave notice within four (4) weeks of the time of injury and as soon as he was advised that he was suffering with a herniated disc rather than neuralgia, notice was given to employer as soon as practicable. Columbus Mining Co. v. Childers, 265 S.W.2d 443, 1954 Ky. LEXIS 726 ( Ky. 1954 ).

Where injured employee gave some notice to the section boss and the company doctor, quit work immediately following the injury, and was given a mistaken diagnosis by doctors who examined him, delay in giving notice to employer was excusable. Rowe v. Semet-Solvay Div. Allied Chemical & Dye Corp., 268 S.W.2d 416, 1954 Ky. LEXIS 901 ( Ky. 1954 ).

While shortness of breath and chest pains did not, as a matter of law, sufficiently apprise a coal miner of the existence of silicosis in order that he might give timely notice, such question was one of fact for determination by the Board and the evidence was sufficient to sustain a finding that the notice was not timely filed. Church v. Turner Elkhorn Coal Co., 492 S.W.2d 877, 1973 Ky. LEXIS 536 ( Ky. 1973 ).

Read together, KRS 342.190 and this section require that notice of an accident and of the nature and extent of a resulting injury be given “as soon as practicable.” Smith v. Cardinal Constr. Co., 13 S.W.3d 623, 2000 Ky. LEXIS 36 ( Ky. 2000 ).

The employer was timely informed that the claimant suffered a cervical injury as well as a lumbar injury when the claim was filed, notwithstanding that the Form 101 claim which the claimant signed referred only to the lumbar injury, as the documents which were filed with the claim clearly indicated that he had also sustained a cervical injury, that surgery was contemplated, and that his physician attributed the cervical injury to the work-related accident. Smith v. Cardinal Constr. Co., 13 S.W.3d 623, 2000 Ky. LEXIS 36 ( Ky. 2000 ).

A claimant cannot reasonably give notice of a cumulative trauma condition prior to the manifestation of the disabling reality thereof. Hill v. Sextet Mining Corp., 2000 Ky. App. LEXIS 133 (Ky. Ct. App. Nov. 9, 2000).

A claimant cannot rely upon notice given years prior to the date on which his cumulative trauma became manifest; in cumulative trauma claims, there is a fundamental change in the nature of the condition on the date that it becomes manifest such that it is permanently disabling, and notice must be given to the employer when disability becomes manifest. Hill v. Sextet Mining Corp., 2000 Ky. App. LEXIS 133 (Ky. Ct. App. Nov. 9, 2000).

Although an employee waited three and a half (31/2) months after a work-related incident to report pain in his shoulder, the delay was reasonable because the employee thought the injury was minor and would resolve itself, and the employee’s claim for workers’ compensation benefits was not barred by KRS 342.185 . Autozone, Inc. v. Brewer, 2002 Ky. App. LEXIS 2339 (Ky. Ct. App. Dec. 20, 2002), aff'd, 127 S.W.3d 653, 2004 Ky. LEXIS 36 ( Ky. 2004 ).

Claimant filed a timely claim within two (2) years of learning from her doctor that work was the cause of her symptoms; that she may have thought her injury was work-related before being told so by her doctor was immaterial for notice purposes because she could not have been expected to self-diagnose the cause of her problem. Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615, 2004 Ky. LEXIS 35 ( Ky. 2004 ).

In a workers’ compensation claim, the administrative law judge reasonably decided that the employee failed to give timely notice of his injury under KRS 342.185 where the claimant did not give notice until 3 months after his injury and more than a month after what first appeared to be an insignificant bruise developed into an open, draining sore. Granger v. Louis Trauth Dairy, 329 S.W.3d 296, 2010 Ky. LEXIS 295 ( Ky. 2010 ).

7. —Sufficiency.

Where employer and employee had agreed on a certain sum as compensation which was approved by the Board and payment was made accordingly and later the award was reopened, the employer could not then object to the sufficiency of the notice in view of the fact that the employer himself had given notice to the board. Black Mountain Corp. v. Murphy, 218 Ky. 40 , 290 S.W. 1036, 1927 Ky. LEXIS 88 ( Ky. 1927 ).

Physician’s report to the employer contained the notation: “Pitching rock and strained self. Lost consciousness until next day.” This was sufficient notice of injury and of such a character as to carry with it knowledge that employee’s back injury might reasonably have been anticipated to result from it. Atlas Coal Co. v. Nick, 289 Ky. 501 , 159 S.W.2d 48, 1942 Ky. LEXIS 590 ( Ky. 1942 ).

Evidence that employee sent his wife to notify foreman of injury and later attempted to notify foreman of injury in person, on each of which occasions foreman refused to talk to wife and employee, was sufficient to support finding that due notice of accident was given. Black Mountain Corp. v. McGill, 292 Ky. 512 , 166 S.W.2d 815, 1942 Ky. LEXIS 87 ( Ky. 1942 ).

Where an employer had knowledge that an employee had an accident in April, the employer was sufficiently apprised of the probability of injury so that it did not require any further notice under this section until the development of the injury into a compensable state was diagnosed, even though the employee did not consult a doctor until early August. Reliance Diecasting Co. v. Freeman, 471 S.W.2d 311, 1971 Ky. LEXIS 237 ( Ky. 1971 ).

Dismissal of a claim on the basis of a lack of notice under KRS 342.185 was error where, although the employee did not first inform the employer of the injury, the employee prepared his first notice of injury the very next day after the accident, and promptly forwarded it to the employer’s insurance carrier, who filed it with the office of workers’ claims (now Department of Workers’ Claims) only 12 days after the accident; the employee continued to co-operate with the carrier, including submitting to an independent medical examination at their request. Further, there was no suggestion that the employer was prejudiced in any way by the notice being given first to the carrier. Smith v. Trico County Dev. & Pipe Line, 2007 Ky. App. LEXIS 248 (Ky. Ct. App. Aug. 3, 2007), aff'd, 289 S.W.3d 538, 2008 Ky. LEXIS 312 ( Ky. 2008 ).

An employer’s insurance carrier may be viewed as being its agent or representative for the purposes of the notice requirement. Trico County Dev. & Pipeline v. Smith, 289 S.W.3d 538, 2008 Ky. LEXIS 312 ( Ky. 2008 ).

Evidence of a worker's notice of an injury was not speculative because (1) the worker consistently said the worker reported the injury on the day the injury occurred, (2) medical records and other employees confirmed the worker's account, and (3) the employer's owner was at the site the day of the injury and later told an investigator the owner was aware of the injury on the date the injury occurred. Commonwealth v. Crayne, 2016 Ky. App. LEXIS 176 (Ky. Ct. App. Sept. 30, 2016), aff'd, 2017 Ky. LEXIS 71 (Ky. Mar. 23, 2017).

8. — Waiver.

The fact that employer’s insurance carrier had aided employee to prosecute claim against third party a year after the alleged accident was merely to protect the carrier’s subrogation rights and did not constitute a waiver of the notice to the employer required by this section. T. W. Samuels Distillery Co. v. Houck, 296 Ky. 323 , 176 S.W.2d 890, 1943 Ky. LEXIS 153 ( Ky. 1943 ).

9. Claim for Compensation.

A letter of inquiry is not the equivalent of filing a claim on the appropriate form. Morgan v. Kays Laundry & Cleaning, Inc., 332 S.W.2d 248, 1959 Ky. LEXIS 13 ( Ky. 1959 ).

Since no formal proceedings are required in workers’ compensation cases, the application for compensation should not be construed with the same strictness as an ordinary civil pleading. Equitable Bag Co. v. Hamblin, 478 S.W.2d 722, 1972 Ky. LEXIS 341 ( Ky. 1972 ).

10. —Statute of Limitations.

Where compensation board has made an award and the injured employee seeks compensation for disability subsequently accruing, such claim for compensation need not be made within one year (now two (2) years) from the happening of the accident. Louisville Milling Co. v. Turner, 209 Ky. 515 , 273 S.W. 83, 1925 Ky. LEXIS 532 ( Ky. 1925 ).

For time limitation purposes, cause of action first accrues when parties fail to agree or when they disagree, and period for filing application with Board runs one year (now two (2) years) from such time. Scott Tobacco Co. v. Cooper, 258 Ky. 795 , 81 S.W.2d 588, 1934 Ky. LEXIS 587 ( Ky. 1934 ).

The filing of the application with the Board is in time if it is filed within 12 months (now two (2) years) after the parties disagree or fail to agree. Russo v. Leckie Collieries Co., 269 Ky. 641 , 108 S.W.2d 661, 1937 Ky. LEXIS 656 ( Ky. 1937 ).

Claim for compensation must be made within one year (now two (2) years) after the accident or after the cessation of voluntary payments provided the delay is not induced by fraud or misrepresentation. Fiorella v. Clark, 298 Ky. 817 , 184 S.W.2d 208, 1944 Ky. LEXIS 1011 ( Ky. 1944 ).

Claim was barred by the statute of limitations, where it was filed more than two (2) years after initial injury. Mitchell v. Union Carbide Corp., 655 S.W.2d 17, 1983 Ky. App. LEXIS 329 (Ky. Ct. App. 1983).

Where the claimant’s injury arose while KRS 342.186 (repealed) was still in effect, and no notice pursuant to KRS 342.186 (repealed) was given by the employer to the claimant, the claim was not barred by the two-year statute of limitations under this section, and the claimant was entitled to compensation. McGregor v. Pip Johnson Constr. Co., 721 S.W.2d 708, 1986 Ky. LEXIS 307 ( Ky. 1986 ).

An employer cannot blatantly disregard its statutory obligation under KRS 342.040 and thereby manufacture the defense of limitation under this section. Frankfort v. Rogers, 765 S.W.2d 579, 1988 Ky. App. LEXIS 156 (Ky. Ct. App. 1988).

In cases where the injury is the result of many mini-traumas, the date for giving notice and the date for clocking a statute of limitations begins when the disabling reality of the injuries become manifest. Randall Company/Randall Div. of Textron, Inc. v. Pendland, 770 S.W.2d 687, 1989 Ky. App. LEXIS 62 (Ky. Ct. App. 1988).

In injury claims that are the result of a single traumatic event or accident, it is the legislative intent for the statute of limitations to run from the date of the accident. Coslow v. General Elec. Co., 877 S.W.2d 611, 1994 Ky. LEXIS 61 ( Ky. 1994 ).

A specific statute of limitation preempts a general statute of limitation where there is a conflict; consequently, KRS 342.670 applies to a workers’ compensation claimant, injured out of state because it specifically and unambiguously refers to filing deadlines for compensated extraterritorial claims, whereas this section is the general workers’ compensation statute of limitation. Boyd v. C & H Transp., 902 S.W.2d 823, 1995 Ky. LEXIS 68 ( Ky. 1995 ).

Where claimant in 1989 experienced symptoms in her hands and arms and was diagnosed as having bilateral carpal tunnel syndrome which was attributed to her work at defendant company and per advice of her doctor she was placed on a different type of job during most of the subsequent years that she continued to work for defendant until she left in 1992, her injury was manifest in 1989 and not at the time she left the job and thus claim filed in 1992 was barred by the statute of limitations set forth in subsection (1) of this section. Brockway v. Rockwell Int'l, 907 S.W.2d 166, 1995 Ky. App. LEXIS 169 (Ky. Ct. App. 1995).

The limitations period in this section was tolled because the employer failed to comply with the notice requirements of KRS 342.038 or KRS 342.040 . H. E. Neumann Co. v. Lee, 975 S.W.2d 917, 1998 Ky. LEXIS 109 ( Ky. 1998 ).

This section operates to prohibit compensation for whatever occupational disability is attributable to trauma incurred more than two (2) years preceding the filing of the claim. Special Fund v. Clark, 998 S.W.2d 487, 1999 Ky. LEXIS 102 ( Ky. 1999 ).

A claim against the Special Fund was not barred by this section because joinder was not sought within two (2) years of the last voluntary temporary total disability payment where (1) there was no basis for determining that a portion of the claimant’s occupational disability was caused by a condition for which the Special Fund was liable until after the two (2) year limitations period had expired, (2) the motion to join the Special Fund was filed as soon as practicable after the evidence to support the liability of the Special Fund was produced, and (3) substantial evidence supported the decision to assign a portion of the liability for the claimant’s award to the Special Fund. Whittaker v. Byard, 25 S.W.3d 118, 2000 Ky. LEXIS 90 ( Ky. 2000 ).

The claimant’s request for benefits filed more than two (2) years after the date of the accident date was properly dismissed even though the employer did not file a required form regarding his injury as the claimant was not entitled to notice of the applicable limitations period since he had not missed more than two (2) weeks of work prior to the time his claim was filed. J & V Coal Co. v. Hall, 62 S.W.3d 392, 2001 Ky. LEXIS 214 ( Ky. 2001 ).

Where no novel scientific principle or theory was involved, it was unnecessary for the doctors’ testimony in a workers’ compensation case to meet the Daubert criteria; the statute of limitations did not begin until a worker knew her injury was work related. Brown-Forman Corp. v. Upchurch, 2002 Ky. App. LEXIS 2345 (Ky. Ct. App. Dec. 27, 2002), aff'd, 127 S.W.3d 615, 2004 Ky. LEXIS 35 ( Ky. 2004 ).

The employer asserted that the employee could not recover workers’ compensation benefits for a neurogenic bladder condition because the employee failed to assert the claim within two (2) years of the date of last payment of temporary total disability benefits, the claim failed; the bladder condition, which did not manifest itself until several years after the original award, was an additional disability stemming from the original injury for which the two-year limitations period under KRS 342.185(1) was not applicable, the limitations period for the instant motion to reopen, decided after December 12, 1996, was four (4) years from December 12, 1996, according to KRS 342.125(8), and the instant motion to reopen, filed on August 21, 2000, was filed within four (4) years. Garrett Mining Co. v. Nye, 122 S.W.3d 513, 2003 Ky. LEXIS 231 ( Ky. 2003 ).

Limitations period for a workers’ compensation injury under KRS 342.185 runs two (2) years from the date of the accident or from the employer’s last voluntary payment of income benefits, not from the date that an employer refuses to pay voluntary temporary total disability benefits. Patrick v. Christopher E. Health Care, 142 S.W.3d 149, 2004 Ky. LEXIS 193 ( Ky. 2004 ).

Although workers’ compensation department’s (DWC) termination letter was sent after employee’s TTD terminated (since it did not get form “IA-2” from the employer notifying it of the termination date until 11 months after the termination date), the employee’s claim was still barred since (although it was made within two (2) years of the letter generated by the DWC), it was not made within two (2) years after the termination of TTD or the accident, whichever was later, under the KRS 342.185(1) statute of limitations. Miller v. Stearns Tech. Textiles Co., 145 S.W.3d 414, 2004 Ky. App. LEXIS 258 (Ky. Ct. App. 2004).

Claimant’s application for compensable workers’ compensation benefits for a hearing loss was barred by the two-year statute of limitations set forth in KRS 342.185 because the claimant sought the benefits more than two years after the claimant was last exposed to a work-related condition that could have caused the hearing loss. Such a claim for a gradual onset injury needed to be filed within two years of the last exposure. Manalapan Mining Co. v. Lunsford, 204 S.W.3d 601, 2006 Ky. LEXIS 200 ( Ky. 2006 ), overruled in part, Consol of Ky. v. Goodgame, 479 S.W.3d 78, 2015 Ky. LEXIS 1863 ( Ky. 2015 ).

Because an injured worker was aware of the work-related nature of his injury more than two (2) years prior to making a workers’ compensation claim, and the worker did not argue that he suffered any additional work-related trauma, substantial evidence supported the ALJ’s finding that the claim was untimely under KRS 342.185 . Miller v. Miller Bros. Coal Co., 2006 Ky. App. Unpub. LEXIS 409 (Ky. Ct. App. Sept. 15, 2006).

Dismissal of a worker’s post-award claim for medical benefits for depression was proper because KRS 342.185 and KRS 342.270(1) required a claim to be filed within two (2) years of the date of the accident and required all known causes of action to be joined or waived, and although the worker knew of her depression condition during the initial proceeding, she failed to raise it in her workers’ compensation claim. Ramsey v. Sayre Christian Vill. Nursing Home, 239 S.W.3d 56, 2007 Ky. LEXIS 239 ( Ky. 2007 ).

When a workers’ compensation claimant sustained an injury that resulted in impairment as of a certain date and continued to be exposed to workplace hazardous noise when he filed his claim, disability resulting from the impairment that was inadequate to be compensable as of two years before he filed his claim did not need to be excluded under KRS 342.185 and 342.270 when calculating the award. KRS 342.7305(2) imposed an eight percent threshold for awarding income benefits, and no medical evidence indicated that the claimant’s injury warranted treatment eight years earlier. Quebecor Book Co. v. Mikletich, 322 S.W.3d 38, 2010 Ky. LEXIS 245 ( Ky. 2010 ).

Two-year statute of limitation under KRS 342.185 barred the claimant’s workers’ compensation claim, because the employer notified the Department of Workers’ Claims that voluntary benefits had terminated, as required by KRS 342.040 , and the Department mailed a letter to the claimant informing him that the time for filing a benefits claim expired two years from the date benefits ceased; the record did not indicate that the letter was deficient or untimely. Decker v. Control Sys., 2012 Ky. App. LEXIS 236 (Ky. Ct. App. Nov. 2, 2012), aff'd, 2013 Ky. Unpub. LEXIS 69 (Ky. Nov. 21, 2013).

11. — — Mandatory.

Compensation law time limitation as to original presentation of claim to employers and to Board is mandatory, and claims not filed within such time are barred. McIntosh v. John P. Gorman Coal Co., 253 Ky. 160 , 69 S.W.2d 7, 1934 Ky. LEXIS 621 ( Ky. 1934 ). See Wilburn v. Auto Exchange, 198 Ky. 29 , 247 S.W. 1109, 1923 Ky. LEXIS 368 ( Ky. 1923 ).

12. — — Particular Claimants.

Where payments have been made to bigamous wife, application by lawful wife to be substituted in her place can be made more than one year (now two (2) years) after death of employee. Johnson v. Hardy-Burlingham Mining Co., 205 Ky. 752 , 266 S.W. 635, 1924 Ky. LEXIS 227 ( Ky. 1924 ).

Where claimant-mother and her infant children were neither parties to award to deceased’s widow nor in privity with widow, award to widow did not inure to benefit of such mother and children and, since their application was original and not a reopening, the statute of limitations ran as to them. McIntosh v. John P. Gorman Coal Co., 253 Ky. 160 , 69 S.W.2d 7, 1934 Ky. LEXIS 621 ( Ky. 1934 ).

Nonresident sui juris dependent parent must proceed to obtain compensation within time prescribed by this section not only for himself but for all other dependents in the family of which he is the head that are under legal disability. Davis v. Mitchell, 266 Ky. 151 , 98 S.W.2d 474, 1936 Ky. LEXIS 625 ( Ky. 1936 ).

Claims for work-related hearing losses were barred by the two (2) year statute of limitations where it is clear that the claimants were aware of their work-related hearing loss for many years before their claims were filed, audiometric evidence established that the level of impairment upon which the claims were based was in existence more than two (2) years before the claims were filed and had not changed in more than two (2) years before that date, and no appreciable worsening of the condition had occurred within two (2) years of the filing of the claims. Alcan Foil Prods. v. Huff, 2 S.W.3d 96, 1999 Ky. LEXIS 71 ( Ky. 1999 ).

Because the repetitive motions required by a claimant’s job exacerbated her pre-existing condition, she sustained an injury under KRS 342.0011 ; further, because work performed within two (2) years before the filing date aggravated the condition, the claim was timely under KRS 342.185 and the claimant was entitled to medical treatment under KRS 342.020 . Univ. of Ky. Family Practice v. Leach, 237 S.W.3d 540, 2007 Ky. LEXIS 214 ( Ky. 2007 ).

13. — — Tolling of Statute.

Where deceased employee’s widow and children were residents of Austria-Hungary, a country with which this country was at war at the time of employee’s death, the statute of limitation was suspended while the two countries were at war. Maryland Casualty Co. v. Vidigoj, 207 Ky. 841 , 270 S.W. 472, 1925 Ky. LEXIS 197 ( Ky. 1925 ).

Where infant children resided with claimant-mother who was separated from her husband and had custody of children, time limitation was not suspended on account of infancy, since mother could apply for such children. McIntosh v. John P. Gorman Coal Co., 253 Ky. 160 , 69 S.W.2d 7, 1934 Ky. LEXIS 621 ( Ky. 1934 ).

Negotiations do not suspend the running of the time within which an application must be filed. Pipes Chevrolet Co. v. Bryant, 274 S.W.2d 663, 1954 Ky. LEXIS 1238 ( Ky. 1954 ).

Where statute which barred a claim not filed within three years after the last injurious exposure was amended before the bar had become complete so that the three-year limitation was removed, the claim was not barred if otherwise filed within the statutory period. Kiser v. Bartley Mining Co., 397 S.W.2d 56, 1965 Ky. LEXIS 59 ( Ky. 1965 ).

There was no merit in the claimant’s charge that the statute of limitations had been tolled by fraud where the record was devoid of any substantive evidence on the claimant’s assertion that the employer or its insurance carrier fraudulently concealed facts from him representing his compensation rights. Moore v. Seagraves Coal Co., 441 S.W.2d 771, 1969 Ky. LEXIS 328 ( Ky. 1969 ).

Where the board found that no assurances to the claimant by the employer or the insurance carrier nor any circumstances in the relations of the parties warranted the claimant’s assumption that his wages were being paid in pro tanto substitution for compensation, the statute of limitations on the claim was not tolled. Moore v. Seagraves Coal Co., 441 S.W.2d 771, 1969 Ky. LEXIS 328 ( Ky. 1969 ).

Where the employer did not inform a claimant of the insurance company’s decision not to honor a claim, the employer’s silence did not constitute a fraudulent concealment or a fake representation tolling the limitations on a claim. Logan Mfg. Co. v. Bradley, 476 S.W.2d 819, 1972 Ky. LEXIS 390 ( Ky. 1972 ).

Where the statements made by the claims adjuster consisted of saying that he was waiting for the doctor’s report before he settled but such statement was not made until after the limitation had run on the time to file the claim, the evidence would not support a finding of any fraudulent concealment or false representation. Logan Mfg. Co. v. Bradley, 476 S.W.2d 819, 1972 Ky. LEXIS 390 ( Ky. 1972 ).

Where the employer’s clerk told the claimant she would be “covered until her doctor released her,” she was not giving advice about the filing of a claim and her statement did not toll the statute of limitations for filing a claim. Emmert v. Jefferson County Board of Education, 479 S.W.2d 621, 1972 Ky. LEXIS 309 ( Ky. 1972 ).

Although claimant filed a written claim for compensation in compliance with KRS 342.190 , thus tolling the statute of limitations, because she did not satisfactorily amend her claim within the allotted 10 days, yet took 35 days, her claim was untimely and had been properly dismissed by the Worker's Compensation Board. Cabinet for Human Resources v. Riley, 921 S.W.2d 616, 1996 Ky. LEXIS 52 ( Ky. 1996 ).

Employer’s failure to comply with the notification requirements of KRS 342.038 and 342.040 tolled the statute of limitations, regardless of whether the employer acted in good faith in conducting its investigation, or whether there was actual prejudice to the claimant. Galownia v. Starlink Satellites, 2002 Ky. App. LEXIS 1565 (Ky. Ct. App. Aug. 2, 2002), aff'd in part and rev'd in part, 2003 Ky. Unpub. LEXIS 125 (Ky. Aug. 21, 2003).

Statute of limitations under KRS 342.185 in the employee’s workers’ compensation case was not tolled pursuant to KRS 413.260 by the restraint placed upon the employee’s case by the employer’s declaration of bankruptcy, as no restraint occurred, because the workers’ compensation claim could be litigated during bankruptcy. Rogers v. Palm Beach Co., 114 S.W.3d 848, 2003 Ky. LEXIS 202 ( Ky. 2003 ).

Workers’ compensation claimant’s application for benefits was properly dismissed as she was notified of her employer’s denial of her claim and of the limitations period six (6) weeks after her injury, while she had a reasonable time to file a claim; the limitations period was not tolled as the claim was not timely and the claimant was not lulled into a false sense of security by the payment of voluntary income benefits. The application of an equitable remedy was not compelled. Patrick v. Christopher E. Health Care, 142 S.W.3d 149, 2004 Ky. LEXIS 193 ( Ky. 2004 ).

Temporary total disability (TTD) benefits paid after a 2003 injury did not toll the limitations periods for the two (2) injuries, and it was not error to fail to consider the tolling claim and to deny the claimant’s petition for reconsideration; an administrative law judge properly found that a 2002 incident caused the claimant’s permanent impairment rating, that KRS 342.185 barred a claim for the 2002 injury within the meaning of KRS 342.0011(1), and that a 2003 incident caused a temporary exacerbation of the 2002 injury, which resulted in a period of TTD and necessitated a period of medical treatment. Shelby Motor Co. v. Quire, 246 S.W.3d 443, 2007 Ky. LEXIS 205 ( Ky. 2007 ).

14. — — — Voluntary Payments.

Payments by employer to widow of deceased employee out of a fund designated as “subscriptions and charities fund” were not made as voluntary payments of compensation but only as a gratuity in the nature of a limited pension and, as such, did not toll the statute of limitations of one year (now two (2) years) in a claim for death of employee. Ashland Iron & Mining Co. v. Fowler, 208 Ky. 422 , 271 S.W. 589, 1924 Ky. LEXIS 21 ( Ky. 1924 ).

A claim for compensation made more than one year (now two (2) years) after the cessation of voluntary payments was barred by this section. Elkhorn Collieries Co. v. Robinson, 234 Ky. 24 , 27 S.W.2d 393, 1930 Ky. LEXIS 107 ( Ky. 1930 ).

Employee who did not apply for compensation within year (now two (2) years) after accident or after disagreement with employer as to payment of compensation did not show that payments of compensation, as such, were voluntarily made by employer so as to toll running of limitation during their payment by evidence that, despite employee’s frequent loss of time through hernia and foot trouble, employer paid regular wages and, to relieve his financial distress and disabled condition, raised collection among fellow employees. Browning v. Ford Motor Co., 287 Ky. 261 , 152 S.W.2d 976, 1941 Ky. LEXIS 539 ( Ky. 1941 ).

After voluntary payments have ceased, the claimant must present his problem to the Board within a year (now two (2) years) from the date of the last payment. Morgan v. Kays Laundry & Cleaning, Inc., 332 S.W.2d 248, 1959 Ky. LEXIS 13 ( Ky. 1959 ).

Where claim was made more than a year following the accident but less than a year following the suspension of voluntary payments, it was not barred by limitation due to this section which extends the time for filing a claim to one year (now two (2) years) after the suspension of voluntary payments. Little v. Persun Constr. Co., 332 S.W.2d 647, 1960 Ky. LEXIS 169 ( Ky. 1960 ).

Payments of medical expenses were not voluntary payments of compensation within the statute, and did not toll limitations. Emmert v. Jefferson County Board of Education, 479 S.W.2d 621, 1972 Ky. LEXIS 309 ( Ky. 1972 ).

Where police officer suffered fractured leg within the scope of his employment in 1973, received temporary total disability benefits for one month, then was paid medical and related expenses by his employer from April 1973 to August 1975, his claim for workers’ compensation filed in April 1977 was not barred by the two-year statute of limitations under this section since the medical and related expenses are “compensation” under subsection (14) of KRS 342.620 (now 342.0011 ) (formerly subsection (12)) and thus payments of compensation under this section which toll the running of the limitations period. Hetteberg v. Newport, 616 S.W.2d 35, 1981 Ky. LEXIS 242 ( Ky. 1981 ) (decision prior to 1980 amendment).

An employer will be allowed credit on a dollar-for-dollar basis rather than a week-by-week basis when the employer makes voluntary payments which are higher than the eventual actual award when claimant’s future benefits are not affected thereby. Triangle Insulation & Sheet Metal Co., Div. of Triangle Enterprises, Inc. v. Stratemeyer, 782 S.W.2d 628, 1990 Ky. LEXIS 1 ( Ky. 1990 ).

15. — — — Minors.

Recognized illegitimate child’s claim for compensation, made six and one-half (61/2) years after father’s death, was not barred by limitations, as statute was tolled until minor had “next friend.” Lockhart's Guardian v. Bailey Pond Creek Coal Co., 235 Ky. 278 , 30 S.W.2d 955, 1930 Ky. LEXIS 333 ( Ky. 1930 ).

Claim of infant dependent for compensation was not barred by limitations where, during period when claim should have been made, infant’s mother was not qualified to apply for compensation as next friend or as joint dependent because she had abandoned deceased husband prior to injury. Davis v. Mitchell, 266 Ky. 151 , 98 S.W.2d 474, 1936 Ky. LEXIS 625 ( Ky. 1936 ).

16. — — Latent Condition.

Where the condition produced by the accident is a latent one, the limitation period fixed by the law commences to run from the time it becomes reasonably apparent that a compensable injury has been sustained. Turner, Day & Woolworth Handle Co. v. Morris, 267 Ky. 217 , 101 S.W.2d 921, 1937 Ky. LEXIS 296 ( Ky. 1937 ).

Where, following accident in which employee fell from hoist and landed on his feet on concrete pavement, employee was paid compensation for temporary disability from foot injuries under a voluntary settlement agreement which was not filed with the compensation board, employee’s subsequent application for adjustment of compensation claim, filed more than one year after the cessation of the voluntary payments, was barred by limitations, notwithstanding that injury to back, for which additional compensation was sought, was not discovered until almost a year after the accident. Fiorella v. Clark, 298 Ky. 817 , 184 S.W.2d 208, 1944 Ky. LEXIS 1011 ( Ky. 1944 ).

17. —Cumulative Injury.

The statute of limitations did not bar any of a worker’s claim based on cumulative injury caused by extensive overhead work where the worker had been told by physicians employed by the employer that her injuries had fully healed prior to the injury that was the basis of the claim and which led to a finding of permanent disability. Toyota Motor Mfg., Ky., Inc. v. Czarnecki, 41 S.W.3d 868, 2001 Ky. App. LEXIS 38 (Ky. Ct. App. 2001).

Although a workers’ compensation claimant did not file her claim within two (2) years of the manifestation of her disability, her claim was timely under KRS 342.185 with regard to the effects of cumulative trauma, and she was, therefore, entitled to medical treatment as provided in KRS 342.020 ; it could not be said that the claimant did not undergo additional harmful changes in the two (2) years since filing her claim. Univ. of Ky. Family Practice v. Leach, 2006 Ky. App. LEXIS 389 (Ky. Ct. App. Dec. 22, 2006), aff'd, 237 S.W.3d 540, 2007 Ky. LEXIS 214 ( Ky. 2007 ).

Administrative law judge (ALJ) erred in determining that an employee’s cumulative trauma claim had to have been filed within two years of his final day of work for the employer in Kentucky because the ALJ had to determine the date of manifestation of the employee’s, i.e. when the employee first learned from a physician the nature of his disabling injury and that the injury was work-related, based on the medical evidence in the record. Consol of Ky., Inc. v. Goodgame, 2014 Ky. App. LEXIS 86 (Ky. Ct. App. May 23, 2014), aff'd in part, 479 S.W.3d 78, 2015 Ky. LEXIS 1863 ( Ky. 2015 ).

18. — — Occupational Disease.

A claim is not barred by the statute of limitations when filed within one year (now two (2) years) from the claimant’s last injurious exposure even though the claimant knew he had silicosis prior to his last exposure. South-East Coal Co. v. Dingus, 352 S.W.2d 190, 1961 Ky. LEXIS 193 ( Ky. 1961 ).

So long as a person who has contracted an occupational disease remains in the full-time service of the same employer, he does not have a disability and therefore does not have a claim. American Radiator & Standard Sanitary Corp. v. Gerth, 375 S.W.2d 817, 1964 Ky. LEXIS 435 ( Ky. 1964 ).

19. — —Estoppel.

Court will not disturb board’s finding based on conflicting evidence that employer was estopped to plead this section because of his representative’s statement to employee and his attorney that employee had three years in which to present his claim. Great Atlantic & Pacific Tea Co. v. Scanlon, 266 Ky. 785 , 100 S.W.2d 223, 1936 Ky. LEXIS 746 ( Ky. 1936 ).

Application to board for compensation three years after injury was not barred by limitations since, throughout such period, employee was constantly lulled into belief that her claim was being considered and would eventually be adjusted by employer, and limitation period only begins to run when employer denies liability or indulges in unreasonable procrastination. Starks Realty Co. v. French, 267 Ky. 255 , 101 S.W.2d 946, 1937 Ky. LEXIS 304 ( Ky. 1937 ).

The failure of employer to report accident had nothing to do with employee’s failure to make his claim for compensation, and employee’s claim not filed within one year was barred by limitation. Langhorne & Langhorne Co. v. Newsome, 285 Ky. 519 , 148 S.W.2d 684, 1941 Ky. LEXIS 419 ( Ky. 1941 ).

Failure of employer to file copy of voluntary settlement agreement with compensation board would not estop employer from relying on one-year limitation prescribed by this section. Fiorella v. Clark, 298 Ky. 817 , 184 S.W.2d 208, 1944 Ky. LEXIS 1011 ( Ky. 1944 ).

Failure of employer to report accident, as required by KRS 342.330 (repealed) does not estop him from relying on one-year limitation prescribed by this section. Fiorella v. Clark, 298 Ky. 817 , 184 S.W.2d 208, 1944 Ky. LEXIS 1011 ( Ky. 1944 ).

Where claimant claimed to have had a myocardial infarction on his employer’s premises on June 12, 1973, but failed to file a claim until July 16, 1976, and where defendant employer raised the two-year statute of limitations under this section, but the defendant special fund did not, the employer’s defense inured to the benefit of the special fund as well, and the fund was not estopped from raising the statute of limitations as a defense as well. Peach v. 21 Brands Distillery, 580 S.W.2d 235, 1979 Ky. App. LEXIS 393 (Ky. Ct. App. 1979).

Administrative law judge (ALJ) erred in holding an employer was estopped to assert a statute of limitations defense based on the employer's misrepresentation to the employee of the employee's true condition, a failure to timely refer the employee to a specialist, or telling the employee the employee's condition was not work related erred because (1) the ALJ did not find from disputed evidence what the condition was, (2) the employee was timely referred, and (3) the employee said the employee was not told the employee's condition was not work related. Toyota Motor Mfg. v. Tudor, 491 S.W.3d 496, 2016 Ky. LEXIS 257 ( Ky. 2016 ).

20. Burden of Proof.

A claimant for compensation has the burden of establishing his case, and must prove that he received an injury in the course of his employment and notified his employer of the injury. Buckles v. Kroger Grocery & Baking Co., 280 Ky. 644 , 134 S.W.2d 221, 1939 Ky. LEXIS 185 ( Ky. 1939 ).

21. Review of Award.

An application to review an award made two (2) years and three (3) months after agreement approved by the board was not barred by this section, as the year’s limitation contained therein referred to payments under arrangement with employee which had never become an award of the board. Johnson v. J. P. Taylor Co., 211 Ky. 821 , 278 S.W. 169, 1925 Ky. LEXIS 976 ( Ky. 1925 ).

A claimant who did not introduce proof of notice of accident was not precluded from a later review of the case by the board on this ground for the reason that the question of notice was never in issue. Southern Mining Co. v. Wilson, 213 Ky. 245 , 280 S.W. 961, 1926 Ky. LEXIS 489 ( Ky. 1926 ).

Since the question of timely notice is one of the threshold questions which must be addressed in any workers’ compensation claim, the Board must make findings of fact that support its conclusion of law that notice was duly and timely given before there can be a basis for meaningful appellate review of the Board’s conclusion. Harry M. Stevens Co. v. Workmen's Compensation Board, 553 S.W.2d 852, 1977 Ky. App. LEXIS 752 (Ky. Ct. App. 1977).

22. Medical Evidence.

Administrative law judge was not required to give greater weight to the findings and conclusions of a claimant’s treating physician and a decision denying the claimant workers’ compensation benefits was supported by substantial evidence when two of the four evaluating physicians concluded that the claimant did not have any residual impairment. Sweeney v. King's Daughters Med. Ctr., 260 S.W.3d 829, 2008 Ky. LEXIS 175 ( Ky. 2008 ).

Cited:

Himyar Coal Corp. v. Gordon, 260 Ky. 709 , 86 S.W.2d 702, 1935 Ky. LEXIS 553 ( Ky. 1935 ); Great Atlantic & Pacific Tea Co. v. Scanlon, 266 Ky. 785 , 100 S.W.2d 223, 1936 Ky. LEXIS 746 ( Ky. 1936 ); Hoenig v. Lemaster’s Committee, 268 Ky. 44 , 103 S.W.2d 708, 1937 Ky. LEXIS 420 ( Ky. 1937 ); Charles v. Big Jim Coal Co., 314 Ky. 778 , 237 S.W.2d 68, 1951 Ky. LEXIS 750 ( Ky. 1951 ); Carr v. Wheeler, 265 S.W.2d 490, 1953 Ky. LEXIS 1262 ( Ky. 1953 ); Bartley v. Bartley, 280 S.W.2d 549, 1955 Ky. LEXIS 186 ( Ky. 1955 ); Deal v. United States Steel Corp., 296 S.W.2d 724, 1956 Ky. LEXIS 228 ( Ky. 1956 ); Osborne Mining Co. v. Davidson, 339 S.W.2d 626, 1960 Ky. LEXIS 474 ( Ky. 1960 ); Patrick v. Highbaugh, 347 S.W.2d 88, 1961 Ky. LEXIS 351 ( Ky. 1961 ); Blue Diamond Coal Co. v. Phillips, 350 S.W.2d 484, 1961 Ky. LEXIS 105 ( Ky. 1961 ); Skaggs v. Wood Mosaic Corp., 428 S.W.2d 617, 1968 Ky. LEXIS 722 ( Ky. 1968 ); Crawford v. V. & C. Coal Co., 432 S.W.2d 403, 1968 Ky. LEXIS 328 ( Ky. 1968 ); Claude N. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 1983 Ky. App. LEXIS 304 (Ky. Ct. App. 1983); Palmore v. Transportation Cabinet, 764 S.W.2d 637, 1988 Ky. App. LEXIS 148 (Ky. Ct. App. 1989); Butler’s Fleet Serv. v. Martin, 173 S.W.3d 628, 2005 Ky. App. LEXIS 203 (Ky. Ct. App. 2005).

Notes to Unpublished Decisions

1. Notice.
2. — Timeliness.

Unpublished decision: Workers’ Compensation Board erred in determining that claimant had failed to give timely notice of his work-related cumulative trauma injury as required by KRS 342.185 where the doctor had told him his injury night be related to work in February 2000 but he was not informed of the fact that his condition was work-related until his meeting with a doctor in March 2000. Robinson v. Mrs. Smith's Bakeries, 2003 Ky. App. LEXIS 284 (Ky. Ct. App. Nov. 7, 2003), aff'd, 2004 Ky. Unpub. LEXIS 5 (Ky. Sept. 23, 2004).

Research References and Practice Aids

Kentucky Bench & Bar.

Patterson, Legislative Changes in Workers’ Compensation: The Pendulum Swings, Vol. 46, No. 4, October 1982, Ky. Bench & Bar 30.

Schabell, Case Development for the Plaintiff in Workers’ Compensation Cases, Vol. 50, No. 2, Spring 1986 Ky. Bench & B. 20.

Schabell, 1994 Workers’ Compensation Changes — A Plaintiff’s Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 17.

Jones, A Defense Perspective of the Kentucky Workers’ Compensation Reform Legislation (House Bill 928), Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 20.

Devlin, Workplace Injuries: The Ever-Changing Law on Limitations and Repose for Gradual Injury Claims, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 17.

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 64 Ky. L.J. 307 (1975-76).

Kentucky Law Survey, Basil, Workers’ Compensation, 69 Ky. L.J. 687 (1980-81).

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

Northern Kentucky Law Review.

Notes, University of Louisville v. O’Bannon: Retroactive Application of Board of Claims Act Amendments, 18 N. Ky. L. Rev. 121 (1990).

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

342.186. Notifying employee of statute of limitations. [Repealed.]

Compiler’s Notes.

This section (Acts 1974, ch. 93, § 1) was repealed by Acts 1980, ch. 104, § 24, effective July 15, 1980.

342.190. Notice and claim to be in writing — Contents.

The notice and claim shall be in writing. The notice shall contain the name and address of the employee, and shall state in ordinary language the time, place of occurrence, nature and cause of the accident, with names of witnesses, the nature and extent of the injury sustained, and the work or employment in which the employee was at the time engaged, and shall be signed by him or a person on his behalf, or, in case of his death, by any one (1) or more of his dependents or a person on their behalf. The notice may include the claim.

History. 4915.

NOTES TO DECISIONS

  1. Requirement Directory.
  2. Notice.
  3. — Contents.
  4. — Verbal.
  5. Amendment of Claim.
  6. Timeliness.
1. Requirement Directory.

The requirement of this section that notice shall be given in writing is directory and not mandatory. Wilburn v. Auto Exchange, 198 Ky. 29 , 247 S.W. 1109, 1923 Ky. LEXIS 368 ( Ky. 1923 ); Ames Body Corp. v. Vollman, 199 Ky. 358 , 251 S.W. 170, 1923 Ky. LEXIS 835 ( Ky. 1923 ); Clover Fork Coal Co. v. Washington, 247 Ky. 848 , 57 S.W.2d 994, 1933 Ky. LEXIS 456 ( Ky. 1933 ). See Turner, Day & Woolworth Handle Co. v. Morris, 267 Ky. 217 , 101 S.W.2d 921, 1937 Ky. LEXIS 296 ( Ky. 1937 ); Carr v. Wheeler, 265 S.W.2d 490, 1953 Ky. LEXIS 1262 (Ky. Ct. App. 1953).

Workers’ compensation statutes do not preclude treatment of the claim application as the method by which notice may be transmitted to an employer in cases of occupational disease claims: although a separate written notice preceding the filing of a claim may have been contemplated by the legislature, and may be the better practice, this section does not require it. Martin County Coal Corp. v. Preece, 924 S.W.2d 840, 1996 Ky. App. LEXIS 106 (Ky. Ct. App. 1996).

2. Notice.

An employer’s insurance carrier may be viewed as being its agent or representative for the purposes of the notice requirement. Trico County Dev. & Pipeline v. Smith, 289 S.W.3d 538, 2008 Ky. LEXIS 312 ( Ky. 2008 ).

3. — Contents.

The employee need not give a full or exact description of the injury; notice giving employer such knowledge as will enable him to provide medical or other attention that the nature or extent of the injury demands is sufficient. Bates & Rogers Const. Co. v. Allen, 183 Ky. 815 , 210 S.W. 467, 1919 Ky. LEXIS 557 ( Ky. 1919 ).

Where injured employee left with secretary of employer company and attorney for insurance company a statement setting forth his name, age and address, the employment which he pursued and his injury, together with the date of its happening, also witnesses and the manner in which his injury took place in detail and what had been done to relieve it, his wages at time of accident and what claim he was making on employer, it was a sufficient compliance with requirements of the law even if the secretary did not mark claim filed and forward it to Compensation Board. Ames Body Corp. v. Vollman, 199 Ky. 358 , 251 S.W. 170, 1923 Ky. LEXIS 835 ( Ky. 1923 ).

The requirement of notice includes the specific injury for which the employee is claiming compensation for disability. Proctor & Gamble Mfg. Co. v. Little, 357 S.W.2d 866, 1962 Ky. LEXIS 153 ( Ky. 1962 ).

4. — Verbal.

The notice requirement was sufficiently complied with where injured employee told foreman of accident caused by sliver of steel striking him in eye. Wilburn v. Auto Exchange, 198 Ky. 29 , 247 S.W. 1109, 1923 Ky. LEXIS 368 ( Ky. 1923 ).

A verbal notice by injured employee which brings to employer’s attention and knowledge the happening of an accident to employee together with the date and general notice thereof is a sufficient compliance with this section. Ames Body Corp. v. Vollman, 199 Ky. 358 , 251 S.W. 170, 1923 Ky. LEXIS 835 ( Ky. 1923 ).

Verbal notice to immediate superior a few minutes after happening of accident was sufficient, notwithstanding provision of this section that notice shall be in writing. Kingston-Pocahontas Coal Co. v. Maynard, 209 Ky. 431 , 273 S.W. 34, 1925 Ky. LEXIS 515 ( Ky. 1925 ).

Notice of happening of injury to employee need not be given in writing to employer where foreman witnessed accident and superintendent heard of it next day and company doctor afterward treated employee. Elkhorn Coal Co. v. Combs, 214 Ky. 635 , 283 S.W. 1007, 1926 Ky. LEXIS 393 ( Ky. 1926 ).

Notice given to employer by employee reporting to company doctor for treatment at time of injury was sufficient notice of effects of injury later developing. Dawkins Lumber Co. v. Hale, 221 Ky. 755 , 299 S.W. 991, 1927 Ky. LEXIS 840 ( Ky. 1927 ).

Where employer directed doctor to send employee to hospital, written notice of injury was not necessary. W. E. Gunn & Co. v. Woody, 239 Ky. 528 , 39 S.W.2d 998, 1931 Ky. LEXIS 819 ( Ky. 1931 ).

Any verbal information communicated to the employer is sufficient where it brings knowledge to him that the employee has received an injury arising out of and in the course of his employment, together with its general nature and date of happening. Carr v. Wheeler, 265 S.W.2d 490, 1953 Ky. LEXIS 1262 (Ky. Ct. App. 1953).

5. Amendment of Claim.

Although claimant filed a written claim for compensation in compliance with this section, thus tolling the statute of limitations, because she did not satisfactorily amend her claim within the allotted 10 days to correct deficiencies, but took 35 days, her claim was untimely and was properly dismissed by the Worker's Compensation Board. Cabinet for Human Resources v. Riley, 921 S.W.2d 616, 1996 Ky. LEXIS 52 ( Ky. 1996 ).

6. Timeliness.

Read together, KRS 342.185 and this section require that notice of an accident and of the nature and extent of a resulting injury be given “as soon as practicable.” Smith v. Cardinal Constr. Co., 13 S.W.3d 623, 2000 Ky. LEXIS 36 ( Ky. 2000 ).

In a workers’ compensation claim, the administrative law judge reasonably decided that the employee failed to give timely notice of his injury under KRS 342.185 where the claimant did not give notice until 3 months after his injury and more than a month after what first appeared to be an insignificant bruise developed into an open, draining sore. Granger v. Louis Trauth Dairy, 329 S.W.3d 296, 2010 Ky. LEXIS 295 ( Ky. 2010 ).

Cited:

Newberg v. Slone, 846 S.W.2d 694, 1992 Ky. LEXIS 188 ( Ky. 1992 ); GE v. Turpen, 245 S.W.3d 781, 2006 Ky. App. LEXIS 379 (Ky. Ct. App. 2006).

342.195. Notice and claim — How served.

The notice and claim shall be given to the employer, or if the employer is a partnership, then to any one (1) of the general partners. If the employer is a corporation or a limited liability company, the notice or claim may be given to any agent of the corporation or limited liability company upon whom process may be served, or to any officer of the corporation or any member or manager, as the case may be, of the limited liability company authorized to manage the limited liability company under its articles of incorporation or to any agent of the corporation or limited liability company in charge of the business at the place where the injury occurred. Notice or claim may be given by delivery to any such person or as provided in KRS 342.135 .

History. 4916: amend. Acts 1998, ch. 341, § 46, effective July 15, 1998.

NOTES TO DECISIONS

1. Notice.

Where officer or agent of corporation in charge of business where injury occurs has knowledge of injury, notice is not necessary and claim for compensation may be made within one year from date of injury. Bates & Rogers Const. Co. v. Emmons, 205 Ky. 21 , 265 S.W. 447, 1924 Ky. LEXIS 37 ( Ky. 1924 ).

342.197. Discrimination against employees who have filed claims or who have a diagnosis of coal-related pneumoconiosis — Civil remedies.

  1. No employee shall be harassed, coerced, discharged, or discriminated against in any manner whatsoever for filing and pursuing a lawful claim under this chapter.
  2. It is unlawful practice for an employer:
    1. To fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment, because such individual has been diagnosed as having category , , or 1/2 occupational pneumoconiosis with no respiratory impairment resulting from exposure to coal dust; or
    2. To limit, segregate, or classify his employees in any way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect his status as an employee, because such individual has been diagnosed as having category , , or 1/2 occupational pneumoconiosis with no respiratory impairment resulting from exposure to coal dust.
  3. Any individual injured by any act in violation of the provisions of subsection (1) or (2) of this section shall have a civil cause of action in Circuit Court to enjoin further violations, and to recover the actual damages sustained by him, together with the costs of the law suit, including a reasonable fee for his attorney of record.

History. Enact. Acts 1984, ch. 96, § 1, effective July 13, 1984; 1987 (Ex. Sess.), ch. 1, § 21, effective October 26, 1987.

NOTES TO DECISIONS

Analysis

  1. Construction.
  2. Legislative Intent.
  3. Wrongful Discharge.
  4. Subsequent Employer.
  5. Instruction.
  6. Burden of Proof.
  7. —Employee.
  8. — Employer.
  9. Filing of Claim.
  10. Reopening of Award.
  11. Reapplying to Return to Work.
  12. Evidence Insufficient.
  13. Evidence Sufficient.
  14. Attorney’s Fees.
  15. Punitive Damages.
  16. Reduction of Jury Award.
  17. Removal from Workforce.
  18. Removal to Federal Court.
  19. Dismissal for Failure to State a Claim.
1. Construction.

A literal construction of this section is not in conformity with its purpose or the legislature’s intent to protect employees from acts by their employers intended to prevent such employees from exercising their rights under the Workers’ Compensation Act; the protection afforded by the statute should not be denied by a technical, narrow or strict interpretation of its provisions. Overnite Transp. Co. v. Gaddis, 793 S.W.2d 129, 1990 Ky. App. LEXIS 35 (Ky. Ct. App. 1990).

Although it is arguable that this section is unambiguous in providing that a claim must have been literally filed and pursued in order for there to be liability on the part of an employer, the general rule requiring the construction of words in a statute in their ordinary sense is not an invariable one, and where application of the commonly accepted meaning of a word would operate to defeat the purpose of the statute and the intent of the legislature, a departure from the usual meaning of the words in a statute may be deemed proper. Overnite Transp. Co. v. Gaddis, 793 S.W.2d 129, 1990 Ky. App. LEXIS 35 (Ky. Ct. App. 1990).

This section is not remedial legislation nor intended to be retroactively applied by the employer to reopen a total disabilities award based on pneumoconiosis. King Coal Co. v. Overton, 907 S.W.2d 171, 9097 S.W.2d 171, 1995 Ky. App. LEXIS 168 (Ky. Ct. App. 1995).

The statute does not provide a cause of action by an employer for an alleged attempted violation of subsection (1) against a business with which it has contracted, but which has no responsibility for the payment of workers’ compensation benefits. Pike County Coal Corp. v. Ratliff, 37 S.W.3d 781, 2000 Ky. App. LEXIS 23 (Ky. Ct. App. 2000).

Statute implicitly waives immunity for those governmental employers accused of violating the statute; however, the waiver applies only to the complainant’s employer. Benningfield v. Fields, 584 S.W.3d 731, 2019 Ky. LEXIS 371 ( Ky. 2019 ).

2. Legislative Intent.

The legislature’s purpose in enacting this section was to protect persons who are entitled to benefits under the workers’ compensation laws and to prevent them from being discharged for taking steps to collect such benefits, and a requirement that an actual filing of a claim is the only event which would trigger the statutory protection would frustrate this intent. Overnite Transp. Co. v. Gaddis, 793 S.W.2d 129, 1990 Ky. App. LEXIS 35 (Ky. Ct. App. 1990).

Although in the body of this section the legislature used the connective word “and” in according protection for those persons “filing and pursuing a lawful claim,” there is reasonable justification to regard “and” as “or” in order to accomplish its purpose. Overnite Transp. Co. v. Gaddis, 793 S.W.2d 129, 1990 Ky. App. LEXIS 35 (Ky. Ct. App. 1990).

This section was amended in 1987 specifically to prohibit employment discrimination against employees who suffer from category one coal worker’s pneumoconiosis. Eastern Coal Corp. v. Blankenship, 813 S.W.2d 808, 1991 Ky. LEXIS 72 ( Ky. 1991 ).

County officials had no immunity as to an employee's claim of termination for filing a workers' compensation claim because (1) Ky. Rev. Stat. Ann. § 342.197(1) waived immunity as a matter of law, (2) the employee was a covered employee, (3) the county was a covered employer required to comply with applicable statutes, and (4) the Kentucky General Assembly broadly intended for there to be no distinction between government and private employees. Fields v. Benningfield, 2018 Ky. App. LEXIS 83 (Ky. Ct. App. Feb. 16, 2018), rev'd, in part, aff'd, 584 S.W.3d 731, 2019 Ky. LEXIS 371 ( Ky. 2019 ).

3. Wrongful Discharge.

This section does not preempt an employee’s right to bring a wrongful discharge action against her employer since KRS 342.990 does not provide a civil remedy. Pike v. Harold (Chubby) Baird Gate Co., 705 S.W.2d 947, 1986 Ky. App. LEXIS 1050 (Ky. Ct. App. 1986).

Where present employer perceived employee as constituting an economic risk in the form of higher premiums for its workers’ compensation insurance coverage and discharged him, Supreme Court held the phrase “for filing and pursuing a lawful claim under this chapter” of subsection (1) of this section does not expand the cause of action for wrongful discharge beyond the retaliatory discharge situation to include claims filed or pursued against previous, different employers. Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 1995 Ky. LEXIS 48 ( Ky. 1995 ).

The defendant employer was entitled to summary judgment on a cause of action alleging that the plaintiff was discharged in retaliation as the plaintiff failed to provide sufficient evidence for a trier of fact to find a connection between her workman’s compensation claim and her discharge; an analysis of the disability claim, as well as the great weight of evidence, indicated that she would have been discharged under the employer’s “100% healed rule,” at least from her welding position, regardless of whether she had filed her workman’s compensation claim. Henderson v. Ardco, Inc., 247 F.3d 645, 2001 FED App. 0133P, 2001 U.S. App. LEXIS 7389 (6th Cir. Ky. 2001 ).

In an employment discrimination case, defendant employer was entitled to summary judgment because plaintiff employee failed to prove that he was discharged during a reduction in force in retaliation for filing two workers’ compensation claims in violation of KRS 342.197(1) in that the temporal proximity between the claims and the adverse employment action did not give rise to an inference of causal connection, as the workers’ compensation claims occurred 12 and 19 months, respectively, before plaintiff employee was laid off. Further, there was no evidence that the claims were considered by defendant employer when it chose to lay off plaintiff employee. Chavez v. Dakkota Integrated Sys., LLC, 832 F. Supp. 2d 786, 2011 U.S. Dist. LEXIS 58382 (W.D. Ky. 2011 ).

County officials were not entitled to summary judgment as to an employee's claim of termination for filing a workers' compensation claim because the employee presented evidence which, if believed by a fact-finder, could establish that the employee's termination violated Ky. Rev. Stat. Ann. § 342.197 . Fields v. Benningfield, 2018 Ky. App. LEXIS 83 (Ky. Ct. App. Feb. 16, 2018), rev'd, in part, aff'd, 584 S.W.3d 731, 2019 Ky. LEXIS 371 ( Ky. 2019 ).

It was appropriate to grant summary judgment for a county jailer in his individual capacity as to a deputy jailer’s retaliation claim because qualified official immunity applied; the act in question was discretionary in nature, made in good faith, and within the scope of the county jailer’s employment, and there there was no evidence in the record to demonstrate bad faith on the part of the county jailer in his individual capacity. Benningfield v. Fields, 584 S.W.3d 731, 2019 Ky. LEXIS 371 ( Ky. 2019 ).

Deputy jailer’s retaliation claim was not barred by the doctrine of sovereign immunity because the statute implicitly waived immunity for a county fiscal court, a county jailer in his official capacity, and another jailer in his official capacity; only the county fiscal court qualified as a deputy jailer’s employer, and the county jailer and other jailer were entitled to the same immunity to the extent they were sued in their official capacities, and the waiver, therefore, applied to them. Benningfield v. Fields, 584 S.W.3d 731, 2019 Ky. LEXIS 371 ( Ky. 2019 ).

In a deputy jailer’s retaliation action, summary judgment was appropriate for individual county employees because there were no facts demonstrating their involvement in the deputy jailer’s termination. Benningfield v. Fields, 584 S.W.3d 731, 2019 Ky. LEXIS 371 ( Ky. 2019 ).

Trial court erred in awarding summary judgment on a deputy jailer’s retaliation claim against the county fiscal court, his employer, because he demonstrated the first three elements of a prima facie retaliation claim; the deputy jailer filed a workers’ compensation claim, a protected activity under the statute, his employer knew he had pursued that claim, and he was terminated. Benningfield v. Fields, 584 S.W.3d 731, 2019 Ky. LEXIS 371 ( Ky. 2019 ).

Because county employees had no involvement in the termination of a deputy jailer, summary judgment was appropriate as to those individuals; there were no allegations of any wrongdoing on the part of the employees. Benningfield v. Fields, 584 S.W.3d 731, 2019 Ky. LEXIS 371 ( Ky. 2019 ).

4. Subsequent Employer.

Where category 1 disease was present, medical proof was taken, and the claim filed against first employer before claimant was employed by another mine, there could be no causal connection between the disease that was the subject of the claim and that latter employment, therefore, former KRS 342.316(10)(c) cannot properly be read to relieve first employer of liability by shifting it to subsequent employer with no connection whatever to the claim. National Mines Corp. v. Pitts, 806 S.W.2d 636, 1991 Ky. LEXIS 41 ( Ky. 1991 ), limited, Begley v. Mountain Top, 968 S.W.2d 91, 1998 Ky. LEXIS 77 ( Ky. 1998 ).

5. Instruction.

For the purpose of defining proper instructions for stating the causation issue, the issue should be framed in terms of whether the lawfully impermissible reason for discharge “was a substantial and motivating factor but for which the employee would not have been discharged.” First Property Management Corp. v. Zarebidaki, 867 S.W.2d 185, 1993 Ky. LEXIS 147 ( Ky. 1993 ).

6. Burden of Proof.
7. —Employee.

The employee’s burden of proof requires neither an irreproachable employment record nor satisfying the jury the workers’ compensation claim must be the sole reason for the termination. First Property Management Corp. v. Zarebidaki, 867 S.W.2d 185, 1993 Ky. LEXIS 147 ( Ky. 1993 ).

It is not necessary for a plaintiff to prove “that retaliation was the primary motivating factor” any more than it is necessary to prove that it is the sole motivating factor. An employee carries his burden by proving that retaliation for filing a workers’ compensation claim was a substantial motivating factor in causing his discharge. First Property Management Corp. v. Zarebidaki, 867 S.W.2d 185, 1993 Ky. LEXIS 147 ( Ky. 1993 ).

The shifting burdens model commonly used in federal employment discrimination and retaliation cases was instructive in action for retaliation for filing workers’ compensation claim; thus, because claimant neither provided sufficient evidence to support his prima facie claim of retaliation nor offered any evidence to rebut employer’s reliance on policy requiring employee to reapply to return to work if absent for more than one month due to an accident as a neutral nondiscriminatory explanation for the termination, summary judgment was granted in favor of employer. Daniels v. R.E. Michel Co., 941 F. Supp. 629, 1996 U.S. Dist. LEXIS 16149 (E.D. Ky. 1996 ).

[Unpublished Opinion] Former employer was properly awarded summary judgment on a former employee’s claim he was retaliated against for filing a workers’ compensation claim in violation of KRS 342.197 when he was terminated after he was injured at work because the chronology of the events alone did not establish the existence of a causal connection to support a retaliation claim. Davis v. Carmelite Sisters of the Divine Heart of Jesus, of Mo., Inc., 116 Fed. Appx. 555, 2004 U.S. App. LEXIS 24962 (6th Cir. 2004).

[Unpublished Opinion] Former employer was properly awarded summary judgment on a former employee’s claim he was retaliated against for filing a workers’ compensation claim in violation of KRS 342.197 when he was terminated after he was injured at work because the employee failed to rebut the employer’s proffered legitimate, non-discriminatory explanation that it terminated the employee for poor work performance. The employee’s unsupported accusation that the supervisor contacted an attorney to arrange a cover-up for the discharge was insufficient to rebut the employer’s evidence that a supervisor was nearly certain that she was going to fire the employee prior to his injury when she prepared his evaluation during his probationary period and affidavits from other employees confirming the supervisor’s dissatisfaction with the employee and his poor work performance. Davis v. Carmelite Sisters of the Divine Heart of Jesus, of Mo., Inc., 116 Fed. Appx. 555, 2004 U.S. App. LEXIS 24962 (6th Cir. 2004).

It was error for the trial court to grant summary judgment to the employer in the employee’s claim for violations of KRS 342.197 and KRS 344.040 , because the employee had provided some evidence to rebut the assertion by the employer that it had a valid, non-discriminatory reason for terminating the employee’s position. The employee established that the employer had not raised the issue of the employee’s absenteeism as a problem before the employee had sustained a work-related injury. Bishop v. Manpower, Inc., 211 S.W.3d 71, 2006 Ky. App. LEXIS 376 (Ky. Ct. App. 2006).

Workers' compensation retaliation claim failed because the employee did not establish an adverse employment action; the employee did not accept a settlement offer that would have required him to resign, and the employer had a legitimate, non-retaliatory reason for placing the employee on no-work-available status after additional medical restrictions were added to the employee's file. Saunders v. Ford Motor Co., 879 F.3d 742, 2018 FED App. 0010P, 2018 U.S. App. LEXIS 690 (6th Cir. Ky. 2018 ).

8. — Employer.

An employer is not free from liability simply because he offers proof he would have discharged an employee anyway, even absent the lawfully impermissible reason, so long as the jury believes the impermissible reason did in fact contribute to the discharge as one of the substantial motivating factors. First Property Management Corp. v. Zarebidaki, 867 S.W.2d 185, 1993 Ky. LEXIS 147 ( Ky. 1993 ).

9. Filing of Claim.

The language of this section was not intended to require “a formal claim” before an employee receives the protection of this section, albeit the statutory language specifies “filing and pursuing a lawful [workers’ compensation] claim.” First Property Management Corp. v. Zarebidaki, 867 S.W.2d 185, 1993 Ky. LEXIS 147 ( Ky. 1993 ).

In order for an employee to establish a claim for wrongful termination in retaliation for pursuing workers’ compensation claim, she must prove that the workers’ compensation claim was “a substantial and motivating factor but for which the employee would not have been discharged”; there is no requirement that “a formal claim” be filed. A claims is established if the plaintiff proves she “intended to file and pursue a lawful worker’s compensation claim.” Southerland v. Hardaway Mgmt. Co., 41 F.3d 250, 1994 FED App. 0395P, 1994 U.S. App. LEXIS 33425 (6th Cir. Ky. 1994 ).

Since there was no indication that any intent to pursue a workers’ compensation claim existed at the time of the plaintiff’s discharge, or that such course of action was discussed, but to the contrary, she was seeking an immediate return to her previous job as manager, claiming that she was able to perform all the required duties of the job and only after she was denied reinstatement did she turn to the Worker’s Compensation Act for relief, the evidence supported the defendant’s assertion that the plaintiff was discharged solely because of her inability to perform her job, because the plaintiff was an at-will employee she could prevail only by showing that she was discharged in violation of this section, thus there was no genuine issues of material fact and summary judgment was proper. Southerland v. Hardaway Mgmt. Co., 41 F.3d 250, 1994 FED App. 0395P, 1994 U.S. App. LEXIS 33425 (6th Cir. Ky. 1994 ).

10. Reopening of Award.

Based on this section which makes it illegal for an employer to discriminate against a worker because he has pneumoconiosis and the Americans with Disabilities Act, an employer was not entitled to reopen a total disabilities award based on pneumoconiosis, when the primary reason for granting the disability award no longer exists. King Coal Co. v. Overton, 907 S.W.2d 171, 9097 S.W.2d 171, 1995 Ky. App. LEXIS 168 (Ky. Ct. App. 1995).

11. Reapplying to Return to Work.

Employer’s policy requiring employee who is absent for more than one month due to an accident to reapply to return to work was not a per se violation of subsection (1) of this section because it did not turn on the pursuit of a workers’ compensation claim. Daniels v. R.E. Michel Co., 941 F. Supp. 629, 1996 U.S. Dist. LEXIS 16149 (E.D. Ky. 1996 ).

12. Evidence Insufficient.

Evidence was insufficient to establish that the plaintiff was discharged in retaliation for her filing of a workers’ compensation claim where she was laid off with about 30 other employees and was not rehired because she had the lowest production average in its plant, rather than in retaliation. Noel v. Elk Brand Mfg. Co., 53 S.W.3d 95, 2000 Ky. App. LEXIS 27 (Ky. Ct. App. 2000).

A former employee’s wrongful discharge claim under KRS 342.197(1) failed as a matter of law where the evidence failed to show that the city’s and mayor’s actions in terminating her were motivated by the employee’s decision to pursue workers’ compensation benefits. Jenkins v. City of Russellville, 2007 U.S. Dist. LEXIS 76630 (W.D. Ky. Oct. 15, 2007).

Employer was entitled to summary judgment in a former employee’s action alleging workers’ compensation retaliation in violation of KRS 342.197 ; the employee failed to establish a prima facie case of retaliation because there was no causal connection between his attempt to obtain workers’ compensation benefits and his termination for poor work performance three years later. Hackworth v. Guyan Heavy Equip., Inc., 613 F. Supp. 2d 908, 2009 U.S. Dist. LEXIS 39852 (E.D. Ky. 2009 ).

Former employee's claim that her employer had violated this section by discharging her in retaliation for filing a workers' compensation claim was unsuccessful because she could not show that the employer's explanations for discharging her amounted to pretext. A video showing the employee's belligerent and unsafe conduct supported the employer's reasons. Witham v. Intown Suites Louisville Northeast, LLC, 815 F.3d 260, 2016 FED App. 0061P, 2016 U.S. App. LEXIS 4444 (6th Cir. Ky. 2016 ).

Former employee, who worked as a chef manager, failed to show that he was terminated due to filing workers compensation claims in violation of Kentucky Workers' Compensation Act because, even though he was fired between four and eight months after he made each respective injury report, there were no other facts or circumstances which would support an inference that the employer retaliated against him based on the workers' compensation claims, particularly as there was a valid reason for the termination since the employee could not perform the essential job duties of a chef manager. Bush v. Compass Grp. USA, Inc., 683 Fed. Appx. 440, 2017 FED App. 0181N, 2017 U.S. App. LEXIS 5248 (6th Cir. Ky. 2017 ).

Appellant’s retaliation claims failed because she admitted she did not engage in the requisite protected activity. Curty v. Norton Healthcare, Inc., 561 S.W.3d 374, 2018 Ky. App. LEXIS 251 (Ky. Ct. App. 2018).

13. Evidence Sufficient.

Evidence supported a jury’s verdict for an employee in his claim brought under KRS 342.197 , alleging that he was discharged for seeking workers’ compensation benefits; thus, the employer’s motions for a directed verdict and for judgment notwithstanding the verdict were properly denied. While the accident was the employee’s third within a two-year period, the employer’s written policy did not mandate termination in such an instance, and there was a coincidental closeness in time between the firing and the claim for benefits. Griffin Indus. v. Mullen, 2006 Ky. App. LEXIS 96 (Ky. Ct. App. Mar. 31, 2006).

Based on the evidence, a reasonable jury could have found that plaintiff was terminated in retaliation for filing for workers’ compensation. No allegations were made against plaintiff until after he went on medical leave to have back surgery; and plaintiff had offered explanations regarding his alleged misconduct. Dollar Gen. Partners v. Upchurch, 214 S.W.3d 910, 2006 Ky. App. LEXIS 330 (Ky. Ct. App. 2006).

Since the plaintiff’s retaliatory discharge claim arose under the Kentucky Workers’ Compensation Act, a state claim under KRS 342.197 was the sole remedy; therefore, a federal court lacked jurisdiction over a former employee’s retaliatory discharge claim against his former employer by operation of 28 U.S.C.S. § 1445(c), and the matter was remanded to state court pursuant to 28 U.S.C.S. § 1447. McCormack v. R.R. Donnelley & Sons Co., 436 F. Supp. 2d 857, 2006 U.S. Dist. LEXIS 46496 (E.D. Ky. 2006 ).

14. Attorney’s Fees.

Although the employee’s attorney did not maintain records throughout the pendency of the case but, instead, estimated the time spent on the case after the trial, the trial court did not abuse its discretion in awarding the attorney $31,625 for his fees. The record revealed that the attorney was required to undertake considerable pre-trial preparation, including attendance and preparation for numerous depositions; to prepare for and to attend a two-day jury trial; and to expend considerable time and effort in defending the employer’s post-trial motions. Griffin Indus. v. Mullen, 2006 Ky. App. LEXIS 96 (Ky. Ct. App. Mar. 31, 2006).

15. Punitive Damages.

Trial court correctly refused to allow the jury to consider the issue of punitive damages in an employee’s suit brought under KRS 342.197 because KRS 342.197 (1) and (3) use language identical to KRS 344.450 , and the Supreme Court had determined that punitive damages were not an available remedy under KRS 344.450 , holding that the term “actual damages” means compensatory damages only and does not include punitive damages. Griffin Indus. v. Mullen, 2006 Ky. App. LEXIS 96 (Ky. Ct. App. Mar. 31, 2006).

It was error to submit the issue of punitive damages to the jury because KRS 342.197 provides only for “actual damages” and actual damages does not include punitive damages. Dollar Gen. Partners v. Upchurch, 214 S.W.3d 910, 2006 Ky. App. LEXIS 330 (Ky. Ct. App. 2006).

16. Reduction of Jury Award.

In an employee’s suit brought under KRS 342.197 , even if the trial court erred in reducing the jury’s award of damages by the amounts that the employee received in state unemployment benefits, the employee was not prejudiced since, under KRS 341.415 , he would have been required to reimburse the state for the duplicate wages if the reduction had not been made. Griffin Indus. v. Mullen, 2006 Ky. App. LEXIS 96 (Ky. Ct. App. Mar. 31, 2006).

It was error to reduce the jury award for back pay awarded to the employee for a violation of KRS 342.197 by the amount of disability payments that the employee received from a union pension fund because the employer did not contribute to the fund making the payments and the payments were not made on the employer’s behalf. Ferry v. Cundiff Steel Erectors, Inc., 218 S.W.3d 390, 2006 Ky. App. LEXIS 358 (Ky. Ct. App. 2006).

17. Removal from Workforce.

When plaintiff, who had been terminated in violation of KRS 342.197 , returned to school, thereby removing himself from the workforce, he was entitled to back pay only up to and including the date he no longer actively sought employment. It was also error to include a bonus in back pay when there was no guarantee that plaintiff would have received one. Dollar Gen. Partners v. Upchurch, 214 S.W.3d 910, 2006 Ky. App. LEXIS 330 (Ky. Ct. App. 2006).

When plaintiff, who had been terminated in violation of KRS 342.197 , returned to school, thereby removing himself from the workforce, it was error to award him front pay. Dollar Gen. Partners v. Upchurch, 214 S.W.3d 910, 2006 Ky. App. LEXIS 330 (Ky. Ct. App. 2006).

It was error for the trial court to preclude the employee in a pre-trial order from seeking front pay benefits in a claim for wrongful discharge under KRS 342.197 because the trial court had already determined that reinstatement would not be an available remedy and front pay should have been considered by the trial court judge as a substitute for the equitable remedy of reinstatement. Ferry v. Cundiff Steel Erectors, Inc., 218 S.W.3d 390, 2006 Ky. App. LEXIS 358 (Ky. Ct. App. 2006).

18. Removal to Federal Court.

Although an employee’s complaint included a claim for workers’ compensation retaliation under KRS 342.197 , the federal district court did not lack jurisdiction over the action because the violation of 28 USCS § 1445(c) was a procedural, and not jurisdictional, defect in removal; further, the defect was waived by the employee’s failure to make a timely motion to remand under 28 USCS § 1447(c). Hackworth v. Guyan Heavy Equip., Inc., 613 F. Supp. 2d 908, 2009 U.S. Dist. LEXIS 39852 (E.D. Ky. 2009 ).

19. Dismissal for Failure to State a Claim.

District court properly granted a former employer's motion to dismiss plaintiff's state law retaliation claim, as none of the alleged events, including complaints about her perfume by an unnamed person and being censured for failing to follow company protocols, constituted an adverse change in the terms and conditions of her employment. White v. Coventry Health & Life Ins. Co., 680 Fed. Appx. 410, 2017 FED App. 0126N, 2017 U.S. App. LEXIS 3430 (6th Cir. Ky. 2017 ).

Cited:

Howell v. Shelcha Coal Co., 834 S.W.2d 693, 1992 Ky. App. LEXIS 190 (Ky. Ct. App. 1992); Moore v. Sunstone Energy, Inc., 849 S.W.2d 529, 1993 Ky. LEXIS 56 ( Ky. 1993 ); Begley v. Mountain Top, 968 S.W.2d 91, 1998 Ky. LEXIS 77 ( Ky. 1998 ); Lynch v. Lear Seating Corp., — F. Supp. 2d —, 2002 U.S. Dist. LEXIS 13452 (W.D. Ky. 2002 ); Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 2003 Ky. LEXIS 86 ( Ky. 2003 ).

Notes to Unpublished Decisions

1. Burden of Proof.
2. — Employee.

Unpublished decision: Where workers’ compensation proceedings established that the employer did not receive notice of an employee’s workers’ compensation claim until after the employee was discharged, collateral estoppel did not preclude the employee’s claim for retaliatory discharge since the employee was not precluded from showing that the employer actually knew of the employee’s intent to file the workers’ compensation claim prior to the discharge. Bullard v. Alcan Aluminum Corp., 113 Fed. Appx. 684, 2004 U.S. App. LEXIS 23015 (6th Cir. Ky. 2004 ), cert. denied, 545 U.S. 1105, 125 S. Ct. 2553, 162 L. Ed. 2d 276, 2005 U.S. LEXIS 4536 (U.S. 2005).

Research References and Practice Aids

Kentucky Bench & Bar.

Hopson, Wrongful Discharge — Whatever Happened to The Employment-at-Will Doctrine?, Ky. Bench & Bar 12 (1985).

Jones, Occupational Disease — Six Years Later, Vol. 58, No. 1, Winter 1994, Ky. Bench & Bar 7.

Lester, Ensuring the Health Care Worker Can Perform the Essential Functions of Their Position in the Increasingly Restricted Legal Environment Governing Hiring and Disability Accommodation, Volume 75, No. 3, May 2011, Ky. Bench & Bar 10.

Northern Kentucky Law Review.

Notes, Nelson Steel Corp. v. McDaniel: DiscriminationAgainst Employees Who Have Filed Workers’ Compensation Claims Against PreviousEmployers, 23 N. Ky. L. Rev. 435 (1996).

Bales & Burns, A Survey of Kentucky Employment Law, 28 N. Ky. L. Rev. 219 (2001).

Burns & Fischesser, A Survey of Kentucky Employment Law., 31 N. Ky. L. Rev. 85 (2004).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Employment Discrimination, § 284.00.

342.200. Certain defects or failure to give notice not to bar compensation.

The notice shall not be invalid or insufficient because of any inaccuracy in complying with KRS 342.190 unless it is shown that the employer was in fact misled to his injury thereby. Want of notice or delay in giving notice shall not be a bar to proceedings under this chapter if it is shown that the employer, his agent or representative had knowledge of the injury or that the delay or failure to give notice was occasioned by mistake or other reasonable cause.

History. 4917.

NOTES TO DECISIONS

  1. Legislative Intent.
  2. Establishing Disability.
  3. Notice.
  4. — Reliance On.
  5. — Delay in Giving.
  6. — Mistake.
  7. — Excusable.
  8. — Not Excusable.
  9. Employer’s Knowledge of Injury.
  10. — Agent or Representative.
1. Legislative Intent.

Liberal legislative intent in the matter of time required in the giving of notice of an injury is demonstrated by this section. Marc Blackburn Brick Co. v. Yates, 424 S.W.2d 814, 1968 Ky. LEXIS 469 ( Ky. 1968 ).

2. Establishing Disability.

Since the existence or nonexistence of disability is a key fact as concerns the requirement of giving notice, a specific finding was required of whether the claimant was disabled from silicosis at or about the time he was given the diagnosis that he had silicosis. Blue Diamond Coal Co. v. Stepp, 445 S.W.2d 866, 1969 Ky. LEXIS 187 ( Ky. 1969 ).

3. Notice.
4. — Reliance On.

A notice which does not meet the requirement of being in writing is sufficient unless the employer is thereby misled to his injury. Wilburn v. Auto Exchange, 198 Ky. 29 , 247 S.W. 1109, 1923 Ky. LEXIS 368 ( Ky. 1923 ).

Employer was not prejudiced where employee notified new company doctor as soon as he came, another company doctor was away, and employee gave formal notice to employer when he knew eye would not get better. Kenmot Coal Co. v. Martin, 227 Ky. 217 , 12 S.W.2d 314, 1928 Ky. LEXIS 489 ( Ky. 1928 ).

5. — Delay in Giving.

Delay in giving notice is excused only by the employer’s actual knowledge of the claim or by mistake or other reasonable cause and is not excusable merely by the fact that the employer was not prejudiced. Blue Diamond Coal Co. v. Stepp, 445 S.W.2d 866, 1969 Ky. LEXIS 187 ( Ky. 1969 ).

6. — Mistake.

Where failure to give required notice within time was due to honest mistake, employer was not prejudiced thereby. Bates & Rogers Const. Co. v. Allen, 183 Ky. 815 , 210 S.W. 467, 1919 Ky. LEXIS 557 ( Ky. 1919 ).

Where employee went to see his own physician on day of accident who diagnosed employee’s condition as being due to lumbago, which diagnosis was concurred in by employer’s physician, and employee did not give notice of accident to employer until several months later after X-ray had been taken indicating a traumatic condition, employee’s delay in giving notice of accident did not bar recovery of compensation, since employer was not prejudiced and delay was due to mistaken diagnosis. American Rolling Mill Co. v. Stevens, 290 Ky. 16 , 160 S.W.2d 355, 1941 Ky. LEXIS 4 ( Ky. 1941 ).

Where injured employee gave some notice to the section boss and the company doctor, quit work immediately following the injury, and was given a mistaken diagnosis by doctors who examined him, delay in giving notice to employer was excusable. Rowe v. Semet-Solvay Div. Allied Chemical & Dye Corp., 268 S.W.2d 416, 1954 Ky. LEXIS 901 ( Ky. 1954 ).

7. — Excusable.

Where employee was not only physically incapacitated but emotionally upset from the time of injury until he notified his employer, his delay in giving notice was reasonably excused. Sexton v. Black Star Coal Corp., 296 S.W.2d 450, 1956 Ky. LEXIS 200 ( Ky. 1956 ).

Where the employee’s failure to give more adequate notice of a specific injury was because of his mistaken personal diagnosis and want of better knowledge, this constituted reasonable cause for the failure to give additional information. Proctor & Gamble Mfg. Co. v. Little, 357 S.W.2d 866, 1962 Ky. LEXIS 153 ( Ky. 1962 ).

8. — Not Excusable.

Where injured employee asked his brother to notify company, brother forgot, and employee never inquired of brother whether notice had been given, failure to give notice was not occasioned by mistake or other reasonable cause, especially since it was not contended that employee was too ill to inquire and to send another in case his message was not delivered. Northeast Coal Co. v. Castle, 202 Ky. 505 , 260 S.W. 336, 1924 Ky. LEXIS 747 ( Ky. 1924 ).

9. Employer’s Knowledge of Injury.

Where employer directed doctor to send employee to hospital, written notice of injury was not necessary. W. E. Gunn & Co. v. Woody, 239 Ky. 528 , 39 S.W.2d 998, 1931 Ky. LEXIS 819 ( Ky. 1931 ).

Notice of a physical injury carries with it notice of all those things which reasonably may be anticipated to result from it. Blue Bird Mining Co. v. Litteral, 314 Ky. 709 , 236 S.W.2d 936, 1951 Ky. LEXIS 729 ( Ky. 1951 ).

KRS 342.038 requires an employer to notify Workers’ Compensation Board within one week after the occurrence and knowledge, as provided in KRS 342.185 to 342.200 of an injury to an employee causing his absence from work for more than one day, however, employer’s obligation is not triggered merely by the notice of an accident as provided in KRS 342.185 to KRS 342.200 , but by said notice coupled with an absence from work more than one day. When the employee is not absent from work until some time after the accident, the employer may be legitimately unaware that the absence is due to the previous occupational injury. Newberg v. Hudson, 838 S.W.2d 384, 1992 Ky. LEXIS 129 ( Ky. 1992 ).

Where employer had actual notice of injury in 1990 when claimant reported the condition to her supervisor, and claimant’s attorney formally notified employer as soon as was practicable after learning of the doctor’s diagnosis and the relationship to claimant’s work, there was substantial evidence to support court’s finding of timely notice of injury. Newberg v. Sleets, 899 S.W.2d 495, 1995 Ky. App. LEXIS 85 (Ky. Ct. App. 1995).

Evidence of a worker's notice of an injury was not speculative because (1) the worker consistently said the worker reported the injury on the day the injury occurred, (2) medical records and other employees confirmed the worker's account, and (3) the employer's owner was at the site the day of the injury and later told an investigator the owner was aware of the injury on the date the injury occurred. Commonwealth v. Crayne, 2016 Ky. App. LEXIS 176 (Ky. Ct. App. Sept. 30, 2016), aff'd, 2017 Ky. LEXIS 71 (Ky. Mar. 23, 2017).

10. — Agent or Representative.

Where employee who received a cut under his eye reported to company doctor for dressing of the wound, no further notice was required to be given by him in order for him to claim compensation. Dawkins Lumber Co. v. Hale, 221 Ky. 755 , 299 S.W. 991, 1927 Ky. LEXIS 840 ( Ky. 1927 ).

Where employer’s doctor had employee under his care for several months and employer’s superintendent saw employee frequently and knew he was complaining of injury, there was sufficient notice to authorize compensation for death of employee. Coneva Coal Corp. v. Morris, 223 Ky. 839 , 4 S.W.2d 1111, 1928 Ky. LEXIS 446 ( Ky. 1928 ).

A foreman or boss in charge of an employer’s work is an agent or representative of the employer, and his knowledge of the injury of any employee has the same effect as if the employer in person had knowledge of it. Roberts v. Black Mountain Corp., 280 Ky. 266 , 132 S.W.2d 941, 1939 Ky. LEXIS 98 ( Ky. 1939 ). See Bates & Rogers Const. Co. v. Allen, 183 Ky. 815 , 210 S.W. 467, 1919 Ky. LEXIS 557 ( Ky. 1919 ); Wilburn v. Auto Exchange, 198 Ky. 29 , 247 S.W. 1109, 1923 Ky. LEXIS 368 ( Ky. 1923 ); Bates & Rogers Const. Co. v. Emmons, 205 Ky. 21 , 265 S.W. 447, 1924 Ky. LEXIS 37 ( Ky. 1924 ); Kingston-Pocahontas Coal Co. v. Maynard, 209 Ky. 431 , 273 S.W. 34, 1925 Ky. LEXIS 515 ( Ky. 1925 ); Elkhorn Coal Co. v. Combs, 214 Ky. 635 , 283 S.W. 1007, 1926 Ky. LEXIS 393 ( Ky. 1926 ); McKinney Steele Co. v. Lewellen, 224 Ky. 200 , 5 S.W.2d 1042, 1928 Ky. LEXIS 555 ( Ky. 1928 ).

Where mine employee, claiming disability as a result of “bad air,” had notified several fellow workers of his illness, it was shown that his superior officers had knowledge of the complaint of bad air and had made an investigation, and the employee was examined by two company physicians who reported that the employee was claiming illness from bad air, there was sufficient notice of accident to the employer. Black Mountain Coal Corp. v. Vickers, 294 Ky. 259 , 171 S.W.2d 442, 1943 Ky. LEXIS 432 ( Ky. 1943 ).

Where foreman was present when employee was hit on head by lump of coal and employee visited company doctor’s office several times, there was no want of timely notice to the company of the accident. Blue Bird Mining Co. v. Litteral, 314 Ky. 709 , 236 S.W.2d 936, 1951 Ky. LEXIS 729 ( Ky. 1951 ).

KRS 342.200 excused the delay in notifying the employer because its agent or representative, the employer’s insurer, had knowledge of the injury within days after it occurred as the worker completed a first report of injury the day after the alleged accident and the employer’s carrier had knowledge of the injury no later than the date it requested his medical records; thus, the notice had to be viewed as timely. Trico County Dev. & Pipeline v. Smith, 289 S.W.3d 538, 2008 Ky. LEXIS 312 ( Ky. 2008 ).

Cited:

Clover Fork Coal Co. v. Washington, 247 Ky. 848 , 57 S.W.2d 994, 1933 Ky. LEXIS 456 ( Ky. 1933 ); Whittle v. General Mills, Inc., 252 S.W.2d 55, 1952 Ky. LEXIS 986 ( Ky. 1952 ); Carr v. Wheeler, 265 S.W.2d 490, 1953 Ky. LEXIS 1262 ( Ky. 1953 ); Harlan Fuel Co. v. Burkhart, 296 S.W.2d 722, 1956 Ky. LEXIS 227 ( Ky. 1956 ); Deal v. United States Steel Corp., 296 S.W.2d 724, 1956 Ky. LEXIS 228 ( Ky. 1956 ); United States Steel Corp. v. Birchfield, 296 S.W.2d 726, 1956 Ky. LEXIS 229 (Ky. 1956); Peabody Coal Co. v. Harp, 351 S.W.2d 170, 1961 Ky. LEXIS 147 ( Ky. 1961 ); Newberg v. Slone, 846 S.W.2d 694, 1992 Ky. LEXIS 188 ( Ky. 1992 ); Blackburn v. Lost Creek Mining, 31 S.W.3d 921, 2000 Ky. LEXIS 143 ( Ky. 2000 ); GE v. Turpen, 245 S.W.3d 781, 2006 Ky. App. LEXIS 379 (Ky. Ct. App. 2006).

Research References and Practice Aids

Northern Kentucky Law Review.

King, Workers’ Compensation Update 1992-1993, 21 N. Ky. L. Rev. 329 (1994).

342.205. Right of employer to require continued physical examination — Payment of cost of examination — Effect of employee’s refusal — Statement of earnings to be furnished at request of party.

  1. After an injury and so long as compensation is claimed, the employee, if requested by a party or by the administrative law judge, shall submit himself or herself to examination, at a reasonable time and place, to a duly-qualified physician or surgeon designated and paid by the requesting party. The employee shall have the right to have a duly-qualified physician or surgeon designated and paid by himself or herself present at the examination, but this right shall not deny the requesting party’s physician or surgeon the right to examine the injured employee at all reasonable times and under all reasonable conditions.
  2. The party requesting an examination pursuant to subsection (1) of this section shall make arrangements to provide all the cost of the examination. The requesting party shall also prepay the cost of transportation of the employee to and from the examination if public transportation is utilized. If the employee uses his or her own vehicle to travel to and from the examination, the requesting party shall prepay the employee at the state mileage rate. The requesting party shall also reimburse the employee for the cost of meals, lodging, parking, and toll charges upon proof of same by written voucher. The amounts prepaid or reimbursed by the requesting party, as required by this subsection, shall be the same as, and in accordance with, state travel administrative regulations and standards promulgated and established pursuant to KRS Chapter 45.
  3. If an employee refuses to submit himself or herself to or in any way obstructs the examination, his or her right to take or prosecute any proceedings under this chapter shall be suspended until the refusal or obstruction ceases. No compensation shall be payable for the period during which the refusal or obstruction continues.
  4. Any employee receiving benefits under this chapter may be required, upon request of any party, to furnish a sworn affirmed statement of earnings and other supporting information the administrative law judge may require.
  5. The cabinet shall supply forms for the report.

History. 4918: amend. Acts 1980, ch. 104, § 9, effective July 15, 1980; 1987 (Ex. Sess.), ch. 1, § 22, effective January 4, 1988; 1990, ch. 382, § 1, effective July 13, 1990; 1994, ch. 181, Part 15, § 78, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 57, effective December 12, 1996; 2000, ch. 514, § 9, effective July 14, 2000; 2010, ch. 24, § 1796, effective July 15, 2010.

NOTES TO DECISIONS

  1. Discretion of Board.
  2. Value of Medical History.
  3. Reasonableness of Refusal.
  4. Failure to Take Exam.
1. Discretion of Board.

Unless the board or the employer sets out the time and place of the examination or the name of the physician who will conduct the examination, the employee shall not be penalized for failure to submit himself for examination. Jerry's Drive In, Inc. v. Young, 335 S.W.2d 321, 1960 Ky. LEXIS 247 ( Ky. 1960 ).

2. Value of Medical History.

A physician employed by the employer to examine a worker may, in testifying as to the worker’s condition, take into consideration the history of physical condition related by the worker in connection with the examination. Kabai v. Majestic Colleries Co., 293 Ky. 783 , 170 S.W.2d 357, 1943 Ky. LEXIS 711 ( Ky. 1943 ).

3. Reasonableness of Refusal.

Where employee had been examined by nine or ten physicians selected by the employer over a period of six months and award of compensation by referee had been recently made after much proof as to employee’s condition, failure of employee to appear for further physical examination, in response to letter from employer written at a time when employer’s motion for review of the referee’s decision by the whole board was pending and of which no notice was given to the board, was not so unreasonable as to deprive him of compensation during the period of such refusal. Stearns Coal & Lumber Co. v. Roberts, 293 Ky. 75 , 168 S.W.2d 573, 1943 Ky. LEXIS 576 ( Ky. 1943 ).

Administrative law judge did not err in determining that the claimant did not properly presented herself for an independent medical examination (IME) after the claimant refused to submit to the IME without her father present because she felt uncomfortable, as that was not sufficient to show good cause for third party attendance. Finke v. Comair, Inc., 489 S.W.3d 242, 2016 Ky. App. LEXIS 63 (Ky. Ct. App. 2016).

4. Failure to Take Exam.

The proper penalty for failing to appear at a scheduled medical exam was not the dismissal of worker claimant’s compensation claim; placing claimant’s compensation claim in abeyance and ordering the cessation of temporary benefits was the only proper sanction. B.L. Radden & Sons v. Copley, 891 S.W.2d 84, 1995 Ky. App. LEXIS 6 (Ky. Ct. App. 1995).

Administrative law judge correctly determined that the claimant was not entitled to any compensation benefits during the period that the claimant refused or obstructed the proceedings, and there was no mechanism for the retroactive restoration of previously suspended benefits. Finke v. Comair, Inc., 489 S.W.3d 242, 2016 Ky. App. LEXIS 63 (Ky. Ct. App. 2016).

Research References and Practice Aids

Kentucky Bench & Bar.

Cetrulo, “Reopening” Under the Kentucky Workers’ Compensation Act, Vol. 50, No. 1, Winter 1985-86 Ky. Bench & B. 28.

Kentucky Law Journal.

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

342.210. Limitation of time not to run against minors or incompetents.

No limitation of time provided in this chapter shall run against any person who is mentally incompetent or who is a minor dependent so long as he has no committee, guardian or next friend, or other person authorized to claim compensation for him under KRS 342.160 .

History. 4919.

NOTES TO DECISIONS

  1. Purpose.
  2. Application.
  3. Claim Brought by Parent.
  4. — Remarriage of Parent.
  5. Illegitimate Child.
1. Purpose.

The purpose of the statute, to ensure that the rights of minor and incompetent beneficiaries of the workers’ compensation scheme are adequately protected, requires that the statute apply to minor dependents of employees and minor employees alike. Roberts by Roberts v. George W. Hill & Co., 23 S.W.3d 635, 2000 Ky. LEXIS 50 ( Ky. 2000 ).

2. Application.

The statute refers only to the filing of claims, and not to the filing of a notice of rejection of workers’ compensation coverage, and, therefore, it does not apply to the timing of an election permitted by KRS 342.650(6). Roberts by Roberts v. George W. Hill & Co., 23 S.W.3d 635, 2000 Ky. LEXIS 50 ( Ky. 2000 ).

3. Claim Brought by Parent.

As the law provides that claim for death of father by minor children may be made by widow and mother who is, by the provisions of the law, thereby created as next friend, the statute of limitations is not suspended during their minority. Ashland Iron & Mining Co. v. Fowler, 208 Ky. 422 , 271 S.W. 589, 1924 Ky. LEXIS 21 ( Ky. 1924 ).

Where infant children resided with claimant-mother who was separated from her husband and had custody of children, time limitation was not suspended on account of infancy, since mother could apply for such children. McIntosh v. John P. Gorman Coal Co., 253 Ky. 160 , 69 S.W.2d 7, 1934 Ky. LEXIS 621 ( Ky. 1934 ).

A dependent parent must proceed to claim compensation within the time prescribed by this chapter not only for himself but for all other dependents in the family of which he is the head who are under a legal disability. Davis v. Mitchell, 266 Ky. 151 , 98 S.W.2d 474, 1936 Ky. LEXIS 625 ( Ky. 1936 ).

Limitations did not run against claim of dependent infant where infant’s mother had abandoned deceased employee prior to time of fatal injury and therefore was disqualified to claim compensation on behalf of infant as next friend or as joint dependent. Davis v. Mitchell, 266 Ky. 151 , 98 S.W.2d 474, 1936 Ky. LEXIS 625 ( Ky. 1936 ).

Where an infant child is living with its mother, she becomes its next friend by operation of law for the purpose of prosecuting an action for recovery for the death of its father, and the statute of limitations is not suspended because of infancy under such conditions. Inland Gas Corp. v. Flint, 269 S.W.2d 239, 1954 Ky. LEXIS 975 ( Ky. 1954 ).

Statute of limitations which required former employee to file a workers’ compensation claim within two (2) years after his employer made its last payment of voluntary income benefits was not tolled by KRS 342.210 for an employee who was 15 years old when he was injured because the employee’s parents were appointed as his next friends to file a civil action against the employer and they could have filed a workers’ compensation claim in his behalf, and the state Supreme Court upheld an administrative law judge’s decision that the employee’s claim for benefits was time-barred. Roberts v. George W. Hill & Co., 113 S.W.3d 156, 2003 Ky. LEXIS 168 ( Ky. 2003 ).

Although plaintiff’s action against defendants as to the shooting death of plaintiff’s parent was not commenced within the one-year statute of limitations found in KRS 413.140(1), the statute of limitations was tolled until one year after plaintiff reached the age of majority under KRS 413.170(1) because plaintiff was a minor; although plaintiff initiated litigation through plaintiff’s other parent as next friend, KRS 413.170(1)’s savings provision, unlike KRS 342.210 , had no exceptions for a committee, guardian, or next friend. Bradford v. Bracken County, 767 F. Supp. 2d 740, 2011 U.S. Dist. LEXIS 3894 (E.D. Ky. 2011 ).

4. — Remarriage of Parent.

When widow of deceased employee remarried, she lost her position as dependent so that her infant children had no one authorized to claim compensation for them, and thus no limitations of time ran against such children. Clover Folk Coal Co. v. Scoggins, 263 Ky. 424 , 91 S.W.2d 543, 1936 Ky. LEXIS 124 ( Ky. 1936 ).

5. Illegitimate Child.

The limitation period was tolled during time recognized illegitimate minor child of deceased had no “next friend,” so that claim for compensation was not barred six and one-half (61/2) years after father’s death. Lockhart's Guardian v. Bailey Pond Creek Coal Co., 235 Ky. 278 , 30 S.W.2d 955, 1930 Ky. LEXIS 333 ( Ky. 1930 ).

Cited:

Zurich Ins. Co. v. Mitchell, 712 S.W.2d 340, 1986 Ky. LEXIS 275 ( Ky. 1986 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Jackson and Crase, A Surveyof Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

342.213. Workers’ Compensation Nominating Committee — Membership — Duties with respect to appointments.

  1. The Governor shall make all appointments to the board, and appoint the administrative law judges of the Department of Workers’ Claims, subject to the consent of the Senate in accordance with KRS 11.160 , and in accordance with this section, KRS 342.215 and 342.230 by choosing from names presented to him or her by the Workers’ Compensation Nominating Commission.
  2. The Workers’ Compensation Nominating Committee shall consist of five (5) members appointed by the Governor as follows:
      1. One (1) member of the political party having the largest number of registered voters and one (1) member of the political party having the second largest number of registered voters shall serve a term of two (2) years; (a) 1. One (1) member of the political party having the largest number of registered voters and one (1) member of the political party having the second largest number of registered voters shall serve a term of two (2) years;
      2. One (1) member of the political party having the largest number of registered voters shall serve a term of three (3) years; and
      3. Thereafter, upon the expiration of a term, , the vacancy created shall be filled by an appointee from the same political party for a term of four (4) years; and
      1. Two (2) members who shall be attorneys with experience in the practice of workers’ compensation, one (1) who customarily represents claimants and one (1) who customarily represents employers, each of whom shall serve a term of four (4) years; and (b) 1. Two (2) members who shall be attorneys with experience in the practice of workers’ compensation, one (1) who customarily represents claimants and one (1) who customarily represents employers, each of whom shall serve a term of four (4) years; and
      2. Thereafter, upon expiration of a term, the vacancy shall be filled by an appointee who meets the same required qualifications or criteria who shall serve a term of four (4) years;
    1. Appointments to fill the unexpired term of a member due to the resignation of a member, removal of a member pursuant to KRS 63.080 , or any other reason shall be for the remainder of the term, and the new appointee shall meet the same required qualifications or criteria as stated in this section; and
    2. At the first meeting of each calendar year, the members shall select a chairman of the nominating committee who shall serve as chairman for the duration of that calendar year.
  3. Notwithstanding the provisions of subsection (2) of this section, at least two (2) members of the Workers’ Compensation Nominating Committee shall be individuals who directly derive no earned income from the workers’ compensation program. In order to satisfy the requirement of this subsection, the Governor shall remove any existing member of the Workers’ Compensation Nominating Committee who directly derives earned income from the workers’ compensation program and replace that member with an individual who does not derive earned income from the workers’ compensation program.
  4. The commissioner shall monitor the workload of the administrative law judges and, whenever a vacancy occurs, determine whether filling the position is necessary to expeditious resolution of claims brought under this chapter. One hundred twenty (120) days prior to the expiration of the terms of the administrative law judges, and when a vacancy occurs under other circumstances, the commissioner shall certify to the Workers’ Compensation Nominating Committee that filling the position is necessary and the Workers’ Compensation Nominating Committee shall act to fill only such positions as have been certified as necessary by the commissioner.
    1. The Workers’ Compensation Nominating Committee shall consult with the commissioner, chief administrative law judge, and a member of the Workers’ Compensation Board as to the performance in office of the administrative law judges. The Workers’ Compensation Nominating Committee may recommend retention of any sitting administrative law judge, or present to the Governor the names of three (3) qualified individuals nominated for the position. The Workers’ Compensation Nominating Committee shall report its recommendation for retention to the Governor no later than thirty (30) days after receipt from the commissioner of certification of the necessity to fill the position and shall render to the Governor its list of nominees to fill vacancies within sixty (60) days of receipt of the commissioner’s certification. The name of an individual who has been rejected by the Governor when recommended for retention shall not be presented thereafter as a nominee for the same position. No sitting administrative law judge shall be nominated to fill more than one (1) vacancy except for separate vacancies as an administrative law judge. (5) (a) The Workers’ Compensation Nominating Committee shall consult with the commissioner, chief administrative law judge, and a member of the Workers’ Compensation Board as to the performance in office of the administrative law judges. The Workers’ Compensation Nominating Committee may recommend retention of any sitting administrative law judge, or present to the Governor the names of three (3) qualified individuals nominated for the position. The Workers’ Compensation Nominating Committee shall report its recommendation for retention to the Governor no later than thirty (30) days after receipt from the commissioner of certification of the necessity to fill the position and shall render to the Governor its list of nominees to fill vacancies within sixty (60) days of receipt of the commissioner’s certification. The name of an individual who has been rejected by the Governor when recommended for retention shall not be presented thereafter as a nominee for the same position. No sitting administrative law judge shall be nominated to fill more than one (1) vacancy except for separate vacancies as an administrative law judge.
    2. Within thirty (30) days of receipt of the recommendation, the Governor may reject recommendations of retention, in which event the Workers’ Compensation Nominating Committee shall, within thirty (30) days, reconvene and present a list of the names of three (3) nominees for each position for which a recommendation for retention has been rejected by the Governor.
  5. The commissioner shall be subject to Senate confirmation in accordance with KRS 11.160 .
    1. The Governor shall appoint the members of the Workers’ Compensation Board. The nominating committee shall present to the Governor a list of three (3) candidates for appointment to the board no later than thirty (30) days prior to the expiration of a board member’s term. For the purpose of filling vacancies on the board which occur for reasons other than an expiration of term, the nominating committee shall present a list of three (3) names to the Governor no later than sixty (60) days after a vacancy occurs. (7) (a) The Governor shall appoint the members of the Workers’ Compensation Board. The nominating committee shall present to the Governor a list of three (3) candidates for appointment to the board no later than thirty (30) days prior to the expiration of a board member’s term. For the purpose of filling vacancies on the board which occur for reasons other than an expiration of term, the nominating committee shall present a list of three (3) names to the Governor no later than sixty (60) days after a vacancy occurs.
    2. If the Governor fails to appoint a member of the board within thirty (30) days following receipt of a list of names from the nominating committee, the previous appointee may remain in the position until the ninetieth day following the date the nominating committee provided the Governor with its list of names, at which time he or she shall vacate the position.
    1. The nominating committee shall meet as often as necessary to perform its statutory responsibilities, including but not limited to the mandates enumerated in this section, and a majority of the members shall constitute a quorum for the transaction of business; and (8) (a) The nominating committee shall meet as often as necessary to perform its statutory responsibilities, including but not limited to the mandates enumerated in this section, and a majority of the members shall constitute a quorum for the transaction of business; and
    2. The members shall be reimbursed from funds collected pursuant to KRS 342.122 for necessary expenses in the manner and amounts prescribed for state employees by KRS 45.101 and the administrative regulations promulgated under the authority of that statute. Members of the nominating committee shall not be paid for their attendance at any meeting.

HISTORY: Enact. Acts 1987 (Ex. Sess.), ch. 1, § 24, effective October 26, 1987; 1994, ch. 181, Part 3, § 9, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 7, effective December 12, 1996; 2000, ch. 514, § 10, effective July 14, 2000; 2010, ch. 24, § 1797, effective July 15, 2010; 2017 ch. 83, § 1, effective June 29, 2017; 2017 ch. 134, § 8, effective June 29, 2017.

Legislative Research Commission Notes.

(6/29/2017). 2017 Ky. Acts ch. 83, sec. 6, states, “Notwithstanding subsection (8)(b) of Section 1 of this Act [this statute], any member of the Workers' Compensation Nominating Committee who previously served on the Workers' Compensation Nominating Commission prior to May 9, 2016, and who was appointed to the committee pursuant [to] Executive Order 2016-319 shall be paid at a rate of $100 per day for each meeting attended for the duration of his or her term. These expenses shall be financed from funds collected pursuant to KRS 342.122 .”

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 83 and 134, which do not appear to be in conflict and have been codified together.

Research References and Practice Aids

Kentucky Bench & Bar.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

Lear and Fleenor, Board and Commission Appointments: Executive Power — With Limits, Vol. 72, No. 4, July 2008, Ky. Bench & Bar 23.

342.215. Workers’ Compensation Board — Authority — Appointment — Qualifications — Term — Vacancies — Retirement system coverage.

  1. The Workers’ Compensation Board is hereby created and established. The board shall rule on appeals of decisions rendered by administrative law judges under this chapter. The board shall rule on an appeal of a decision of an administrative law judge no later than sixty (60) days following the date on which the last appeal brief was filed.
  2. The Workers’ Compensation Board shall consist of three (3) members appointed by the Governor. Each member shall hold no other public office and shall devote his or her full time to the duties of his or her office. Each member shall be exempt from the classified service, and his or her support staff may be exempt from the classified service.
  3. Of the members of the board appointed under this section, one (1) shall serve a term that shall expire on January 4, 2002; one (1) shall serve a term that shall expire on January 4, 2003; and one (1) shall serve a term that shall expire on January 4, 2004, as designated by the Governor at the time of appointment. Thereafter, each term of a board member shall run for four (4) years from the date of expiration of the term for which the member’s predecessor was appointed, except that a person appointed to fill a vacancy prior to the expiration of a term shall be appointed for the remainder of the term. The Governor shall not appoint a member of the board to fill the unexpired term of another board member, nor shall the Governor reappoint a member of the board who has been removed from his or her position prior to the expiration of his or her term. The members of the board shall have the qualifications required of appeals court judges, except for residence in a district, and shall receive the same salary and shall be subject to the same standards of conduct. The Governor shall designate a member of the board to serve as chairman. Any vacancy in the chairmanship shall be filled by the Governor. The Governor may at any time remove any member for cause after furnishing the member with a written copy of the charges against him or her and giving the member a public hearing if he or she requests it.
  4. A decision concurred in by any two (2) of the three (3) members shall constitute a decision of the board.
  5. Members of the Workers’ Compensation Board and the administrative law judges shall be members of the Kentucky Employees Retirement System.
  6. The Workers’ Compensation Board shall be attached to the Department of Workers’ Claims in the Labor Cabinet.

History. 4618-112, 4920: amend. Acts 1956, ch. 3; 1956, ch. 77, § 15; 1964, ch. 192, § 15; 1972, ch. 78, § 29; 1984, ch. 414, § 36, effective July 13, 1984; 1987 (Ex. Sess.), ch. 1, § 23, effective January 4, 1988; 1994, ch. 181, Part 3, § 10, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 8, effective December 12, 1996; 2000, ch. 514, § 11, effective July 14, 2000; 2010, ch. 24, § 1798, effective July 15, 2010; 2017 ch. 82, § 7, effective June 29, 2017.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Function of Board.
  3. Members.
  4. — Disqualification.
  5. — Practice of Law.
  6. Delegation of Authority.
1. Constitutionality.

Compensation Board was not a court within the meaning of Const., § 135 (now repealed), and creation of compensation board was constitutional. Greene v. Caldwell, 170 Ky. 571 , 186 S.W. 648, 1916 Ky. LEXIS 126 ( Ky. 1916 ).

2. Function of Board.

Compensation Board is administrative agency created by law to find facts of each case and apply law to those facts in accordance with provisions and purposes of such law. Broadway & Fourth Ave. Realty Co. v. Metcalfe, 230 Ky. 800 , 20 S.W.2d 988, 1929 Ky. LEXIS 181 ( Ky. 1929 ).

Compensation Board was expressly determined not to be a court within meaning of the Constitution. Sears v. Elcomb Coal Co., 253 Ky. 279 , 69 S.W.2d 382, 1934 Ky. LEXIS 652 ( Ky. 1934 ).

3. Members.
4. — Disqualification.

An attempt to disqualify a member or members of the Workers’ Compensation Board because of alleged constructive fraud or violations of constitutional rights should have been made at the time the compensation claim was filed and not on a petition to review in the Circuit Court. Taylor v. G. Bittner's Sons, Inc., 432 S.W.2d 644, 1968 Ky. LEXIS 349 ( Ky. 1968 ).

5. — Practice of Law.

A member of the Workers’ Compensation Board is not prohibited from practicing law. Taylor v. G. Bittner's Sons, Inc., 432 S.W.2d 644, 1968 Ky. LEXIS 349 ( Ky. 1968 ).

6. Delegation of Authority.

Since this section provides that each member of the Workers’ Compensation Board shall have the qualifications required of Circuit Court judges, neither the board nor its members can delegate decision-making authority to any other person. W. M. Cissell Mfg. Co. v. Harris, 609 S.W.2d 377, 1980 Ky. App. LEXIS 393 (Ky. Ct. App. 1980).

Cited:

Jefferson County Bd. of Education v. Miller, 744 S.W.2d 751, 1988 Ky. App. LEXIS 24 (Ky. Ct. App. 1988); Staton v. Poly Weave Bag Co., 930 S.W.2d 397, 1996 Ky. LEXIS 81 ( Ky. 1996 ).

Opinions of Attorney General.

In view of this section, KRS 342.230 , and 342.255 (now repealed), it appears that the Workers’ Compensation Board has authority to establish and fill any positions necessary to carry on the board’s work and could, therefore, employ two or three full time attorneys to work in the Frankfort office to assist the board in rendering opinions. OAG 75-516 .

Upon review of this section and KRS 12.020 II 11 (f) (now (II) 5(e)), as well as of KRS 18A.350 , 18A.355 , and 18A.360 (now repealed), the incumbents of the Workers’ Compensation Board are included under the language of KRS 18A.350 which defines employee as any officer or employee of the executive brand of government; therefore, it would appear that the members of the Workers’ Compensation Board are eligible for annual increments, although it is entirely possible that this was not the intent of the Legislature, especially since compensation for such board members is indexed to the salaries of appeals court judges. OAG 90-25 .

Research References and Practice Aids

Cross-References.

Appointment to administrative boards, KRS 12.070 , 61.070 .

Kentucky Bench & Bar.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

342.220. Oath of Board Members.

Each member of the board shall take the oath prescribed by Section 228 of the Constitution.

History. 4618-112, 4924: amend. Acts 1946, ch. 27, § 43; 1956, ch. 77, § 16; 1972, ch. 78, § 33.

Research References and Practice Aids

Cross-References.

Oaths and bonds, KRS Ch. 62.

342.225. Supervision by Commissioner of Labor. [Repealed.]

Compiler’s Notes.

This section (4618-112) was repealed by Acts 1964, ch. 192, § 27.

342.228. Responsibilities of Department of Workers’ Claims — Selection and qualifications of commissioner.

  1. The Department of Workers’ Claims shall be responsible for administering claims and ensuring compliance with the insurance, self-insurance, and rehabilitation provisions in this chapter. The department shall be administered by a commissioner appointed by the Governor. The commissioner appointed by the Governor shall be subject to the consent of the Senate in accordance with KRS 11.160 .
  2. The commissioner shall have demonstrated knowledge and experience in the area of workers’ compensation, public administration, and administrative law.

HISTORY: Enact. Acts 1987 (Ex. Sess.), ch. 1, § 3, effective January 4, 1988; 1994, ch. 181, Part 3, § 11, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 9, effective December 12, 1996; 2010, ch. 24, § 1799, effective July 15, 2010; 2017 ch. 83, § 5, effective June 29, 2017; 2017 ch. 134, § 9, effective June 29, 2017.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 83 and 134, which do not appear to be in conflict and have been codified together.

Research References and Practice Aids

Kentucky Bench & Bar.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

342.229. Claimant records — Limitation on inspection.

  1. The records of the Department of Workers’ Claims, to the extent that they provide information personally identifying an individual alleging a work-related injury or occupational disease, shall not be open to the public but only to parties satisfying the commissioner of their interest in the records and their right to inspect them.
  2. This section shall not prohibit or limit the exchange of public records or the sharing of information between the Department of Workers’ Claims and another public agency when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function, including the investigation of workers’ compensation fraud.

History. Enact. Acts 1996, ch. 355, § 2, effective July 15, 1996; 2010, ch. 24, § 1800, effective July 15, 2010.

Opinions of Attorney General.

Under the express terms of this KRS 342.229(1), the Department must withhold all records that personally identify an individual alleging a work related injury or occupational disease unless the requester can satisfy the commissioner of his interest in the records and the right to inspect them. Since the evidence does not indicate that the requester has presented to and satisfied the Commissioner of his interest in the records and his right to inspect them, the Department properly withheld access to the records under authority of KRS 61.878(1)(l) and KRS 342.229(1). OAG 04-ORD-252.

342.230. Appointment, qualifications, terms, and duties of administrative law judges — Exemption from classified service — Removal provisions — Vacancies — Chief administrative law judge.

  1. The commissioner with the assistance of the board shall train and instruct the administrative law judges on an ongoing basis; assign cases; and monitor the caseloads of the administrative law judges and the Workers’ Compensation Board to ensure timely disposition of cases; keep and be the custodian of the records of the board and the administrative law judges; annually report the activities of the board and the administrative law judges to the Governor; and devote his or her full time to the duties of his or her office. The commissioner shall be paid a salary not less than the salary of a member of the board.
  2. The Governor shall appoint, with the consent of the Senate in accordance with KRS 11.160 for a term of four (4) years, not more than nineteen (19) administrative law judges, each of whom shall be an attorney and shall have five (5) years’ experience in the Commonwealth in the practice of workers’ compensation law or a related field, and extensive knowledge of workers’ compensation law, and shall be paid the same salary as a Circuit Judge. Each administrative law judge shall be exempt from the classified service, and his or her support staff may be exempt from the classified service. Each administrative law judge may be employed for additional terms with the consent of the Senate in accordance with KRS 11.160 . The Governor, at least thirty (30) days prior to the expiration of a term of an administrative law judge, shall provide the name of the individual whom he intends to appoint to the position to the chairman of the Senate Labor and Industry Committee. These administrative law judges shall conduct hearings, and otherwise supervise the presentation of evidence and perform any other duties assigned to them by statute and shall render final decisions, orders, or awards. Administrative law judges may, in receiving evidence, make rulings affecting the competency, relevancy, and materiality of the evidence about to be presented and upon motions presented during the taking of evidence as will expedite the preparation of the case.
  3. To ensure that the administrative law judges perform their responsibilities competently and issue decisions consistent with this chapter, the commissioner shall, at least twice annually, conduct training and education seminars in workers’ compensation law; administrative law; and methods and procedures for writing well-reasoned, clear, correct, and concise opinions, orders, or awards.
  4. The Governor may at any time remove the commissioner or any member of the board. The commissioner may remove any administrative law judge. A member of the board or an administrative law judge may be removed for good cause, including violation of the code of judicial ethics or the code of ethics applicable to the executive branch of the Commonwealth. In addition, an administrative law judge or a member of the board may be removed for the persistent or repeated failure to perform satisfactorily the specific duties assigned in this chapter, including the requirement of timely disposition of cases, review of attorney’s fees, and failure to attend training and continuing education programs required by this section.
  5. Any vacancy in the term of an administrative law judge, which occurs prior to the expiration of the term, shall be filled if necessary by appointment of the Governor in accordance with subsection (2) of this section within sixty (60) days from the date the vacancy occurs, with the consent of the Senate in accordance with KRS 11.160 , for the remainder of the term.
    1. On January 1, 1998, the Governor shall make four (4) year appointments to fill as many of these positions as are necessary to fulfill the duties assigned to administrative law judges under this chapter. (6) (a) On January 1, 1998, the Governor shall make four (4) year appointments to fill as many of these positions as are necessary to fulfill the duties assigned to administrative law judges under this chapter.
    2. On January 1, 2000, the Governor shall make four (4) year appointments to fill as many of these positions as are necessary to fulfill the duties assigned to administrative law judges under this chapter.
  6. One (1) of the administrative law judges appointed pursuant to this section shall be appointed as a chief administrative law judge, to have the same qualifications, powers, duties, and requirements as those of other administrative law judges. The chief administrative law judge shall not be assigned regular dockets but shall instead assist the commissioner by doing all scheduling of the administrative law judges, handling dockets assigned to the administrative law judges in case of an emergency, providing supervision of the administrative law judges, and providing educational opportunities for the administrative law judges. The chief administrative law judge shall be paid at the same rate as the administrative law judges plus an additional three thousand dollars ($3,000) per year. At any time the commissioner may replace the chief administrative law judge with one (1) of the other administrative law judges at which time the former chief administrative law judge shall resume the duties assigned to the other administrative law judges pursuant to this chapter. On January 1, 1998, the commissioner shall employ a person in this position for a four (4) year term.

History. 4618-112, 4923: amend. Acts 1948, ch. 64, § 13; 1954, ch. 222, § 2; 1964, ch. 192, § 16; 1976, ch. 160, § 5; 1984, ch. 414, § 37, effective July 13, 1984; 1987 (Ex. Sess.), ch. 1, § 25, effective January 4, 1988; 1990, ch. 33, § 1, effective March 7, 1990; 1994, ch. 181, Part 3, § 12, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 10, effective December 12, 1996; 2000, ch. 514, § 12, effective July 14, 2000; 2010, ch. 24, § 1801, effective July 15, 2010; 2017 ch. 82, § 8, effective June 29, 2017; 2017 ch. 134, § 10, effective June 29, 2017.

Compiler's Notes.

Section 6 of Acts 1990, ch. 33 provided that the five additional law judges authorized in this section should, in no event, be employed by the Worker’s Compensation Board unless they have been confirmed by the Senate as required in this section.

Legislative Research Commission Notes.

(2/1/2018). Under the authority of KRS 7.136(1)(h), a reference to “subsection (3) of this section” in subsection (5) of this statute has been changed to “subsection (2) of this section” by the Reviser of Statutes following the enactment of 2017 Ky. Acts ch. 134, sec. 10, which deleted a subsection from KRS 342.230 and renumbered the subsequent subsections, but overlooked the internal subsection reference in the existing language.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 82 and 134, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Nonappointed Commissioner.
  3. Administrative Law Judge.
  4. — Authority.
1. Constitutionality.

The procedure for advice and consent of subsection (3) of this section is constitutional; there is no violation of the separation of powers doctrine because the statute does not permit the Senate to make appointments of administrative law judges but only to accept or reject the decision of the Worker's Compensation Board. Kraus v. Kentucky State Senate, 872 S.W.2d 433, 1993 Ky. LEXIS 169 ( Ky. 1993 ), limited, Fox v. Grayson, 317 S.W.3d 1, 2010 Ky. LEXIS 88 ( Ky. 2010 ).

2. Nonappointed Commissioner.

A decision by a nonappointed individual designated as a commissioner which was adopted by the full Workers’ Compensation Board was not official where the minimal requirements of KRS 342.255 (now repealed) that at least one board member read the briefs of the parties and check the proposed opinion to see if it fairly deals with the issues were not met, since this section specifically states that the hearing officer (commissioner) may not render final decisions, orders or awards. W. M. Cissell Mfg. Co. v. Harris, 609 S.W.2d 377, 1980 Ky. App. LEXIS 393 (Ky. Ct. App. 1980).

Since a hearing officer is not authorized by this section to assume the fact-finding and decision-making authority of the board, neither is a nonappointed individual designated as a commissioner. W. M. Cissell Mfg. Co. v. Harris, 609 S.W.2d 377, 1980 Ky. App. LEXIS 393 (Ky. Ct. App. 1980).

3. Administrative Law Judge.
4. — Authority.

As of July 14, 1992, subsection (5) (now (6)) of this section and KRS 11.160(1) authorized an Administrative Law Judge (ALJ) to assume the responsibilities of the position of ALJ pending confirmation by the Senate. Bullock v. Peabody Coal Co., 882 S.W.2d 676, 1994 Ky. LEXIS 83 ( Ky. 1994 ) (Decision prior to 1994 amendment).

Decision by administrative law judge (ALJ), who had been appointed but not confirmed by the Senate when the decision was rendered, was not void. Bullock v. Peabody Coal Co., 882 S.W.2d 676, 1994 Ky. LEXIS 83 ( Ky. 1994 ).

Cited:

Jefferson County Bd. of Education v. Miller, 744 S.W.2d 751, 1988 Ky. App. LEXIS 24 (Ky. Ct. App. 1988); Staton v. Poly Weave Bag Co., 930 S.W.2d 397, 1996 Ky. LEXIS 81 ( Ky. 1996 ).

Opinions of Attorney General.

In view of this section, KRS 342.215 , and 342.255 (now repealed), it appears that the Workers’ Compensation Board has authority to establish and fill any positions necessary to carry on the board’s work and could, therefore, employ two or three full time attorneys to work in the Frankfort office to assist the board in rendering opinions. OAG 75-516 .

Administrative law judges are not employees in the classified service but nevertheless, the Governor does not have unbridled authority over their hiring or firing; hiring is done by the Workers’ Compensation Board with the consent of the State Senate and removal of an administrative law judge is provided for in subsection (4) (now (5)) of this section. OAG 92-21 .

The Workers’ Compensation Board may remove any administrative law judge who violates the Code of Judicial Ethics regardless of whether his conduct also violates an executive order. OAG 92-38 .

Research References and Practice Aids

Kentucky Bench & Bar.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

342.231. Monthly reports.

The Labor Cabinet shall report monthly to the Committee on Appropriations and Revenue its monthly expenditures of restricted agency funds and the nature of such expenditures. Separate reporting shall be done by each office within the Labor Cabinet and for general administration and support.

History. Enact. Acts 1988, ch. 437, Pt. II, J, § 44(1), (2), effective April 15, 1988; 1994, ch. 181, Part 3, § 13, effective April 4, 1994; 2010, ch. 24, § 1802, effective July 15, 2010.

342.232. Quarterly reports on insurance guaranty funds, Kentucky coal workers’ pneumoconiosis fund, and the status of KRS Chapter 342.

  1. The boards of directors of the following funds shall make quarterly reports according to generally accepted accounting principles of all money received and disbursed by the listed funds during each quarter to the Legislative Research Commission. The funds which shall be reported are:
    1. Kentucky individual self-insurance guaranty fund;
    2. Kentucky group self-insurance fund; and
    3. Kentucky coal employers self-insurance fund.
  2. The director of the Division of Workers’ Compensation Funds shall make quarterly reports according to generally accepted accounting principles of all money received and disbursed by the coal workers’ pneumoconiosis fund to the Legislative Research Commission.
  3. The Department of Workers’ Claims shall make quarterly reports to the Legislative Research Commission on the status of the provisions of this chapter.

History. Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 78, effective December 12, 1996; 2002, ch. 246, § 3, effective July 15, 2002; 2010, ch. 24, § 1803, effective July 15, 2010.

342.235. Traveling expenses.

The commissioner and employees or authorized representatives of the department shall, for traveling necessitated by the discharge of official duties, be reimbursed for transportation actually paid for, not exceeding the regular fare over the most direct route, and meals and lodging actually paid for.

History. 4925: amend. Acts 1954, ch. 222, § 3; 1994, ch. 181, Part 15, § 79, effective April 4, 1994; 2010, ch. 24, § 1804, effective July 15, 2010.

342.240. Office — Equipment — Seal — Sessions — Venue of certain proceedings.

The department shall maintain its main office in Frankfort, Kentucky, using suitable rooms and offices belonging to this state, and shall be provided necessary office furniture to be paid for by the state. The commissioner shall provide necessary supplies, books, periodicals, and maps and shall provide a seal for the authentication of orders, awards, or proceedings of the administrative law judges, on which shall be inserted the words “Department of Workers’ Claims, State of Kentucky, official seal.” The board and the administrative law judges may hold sessions at any place within the state where necessary and shall have power to sue or institute legal proceedings in any court of this state, under existing laws as to jurisdiction of actions. Unless consented to by the commissioner, all actions or proceedings against the board or a member in his or her official capacity, or against an administrative law judge or the commissioner in his or her official capacity, shall be brought in the courts of Franklin County.

History. 4926: amend. Acts 1987 (Ex. Sess.), ch. 1, § 26, effective January 4, 1988; 1994, ch. 181, Part 15, § 80, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 58, effective December 12, 1996; 2000, ch. 514, § 13, effective July 14, 2000; 2010, ch. 24, § 1805, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Motorists Mut. Ins. Co. v. Terry, 536 S.W.2d 472, 1976 Ky. LEXIS 83 ( Ky. 1976 ).

342.245. Record of proceedings.

All proceedings of the board and the administrative law judges shall be recorded in books kept for that purpose by the commissioner, which shall constitute a public record and shall contain an entry of each case, claim, or proceeding considered, heard or passed upon by each administrative law judge and the board, with the award, finding or decisions made thereon.

History. 4927: amend. Acts 1964, ch. 192, § 17; 1972, ch. 78, § 34; 1987 (Ex. Sess.), ch. 1, § 27, effective January 4, 1988; 1996 (1st Ex. Sess.), ch. 1, § 59, effective December 12, 1996; 2000, ch. 514, § 14, effective July 14, 2000; 2010, ch. 24, § 1806, effective July 15, 2010.

NOTES TO DECISIONS

1. Entry of Award.

An award which was entered in the order book but not signed by the chairman of the board until its next regular meeting was rendered on the day it was entered in the book, so that limitations on the time for filing of a petition for review began to run on the former date. Carnahan Oil & Refining Co. v. Miller, 232 Ky. 78 , 22 S.W.2d 430, 1929 Ky. LEXIS 394 ( Ky. 1929 ).

Entry of a decision of the Workers’ Compensation Board as contemplated by CR 76.25(2), which establishes a period of 30 days from the entry of the board’s final decision to file a petition for review, takes place at the time the commissioner, or a member of his clerical staff, makes the statutorily required entry into the record book “kept for that purpose.” Coker v. Ash Trucking Co., 917 S.W.2d 183, 1996 Ky. App. LEXIS 21 (Ky. Ct. App. 1996).

Because regardless of when a judgment or order is rendered, it is its notation in the docket by the clerk which constitutes “entry,” where there was no indication that the Workers’ Compensation Board’s decision was noted on the docket on the date of rendition, Court of Appeals’ dismissal of claim as untimely was reversed and case remanded with claimant ordered to obtain and file with the court, within 21 days, a document containing a certificate which reflected the date upon which the decision of the Board was entered and the date upon which the parties were served with notice of the decision. Staton v. Poly Weave Bag Co., 930 S.W.2d 397, 1996 Ky. LEXIS 81 ( Ky. 1996 ).

342.250. Members’ residence to be shown on stationery. [Repealed.]

Compiler’s Notes.

This section (4928) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973.

342.255. Hearing, how held — What deemed order of board. [Repealed.]

Compiler’s Notes.

This section (4920, 4929: amend. Acts 1964, ch. 192, § 18; 1972, ch. 78, § 35) was repealed by Acts 1987 (Ex. Sess.), ch. 1, § 72(1) effective December 29, 1987.

342.260. Permitted and required departmental administrative regulations — Adoption of life expectancy tables — Processes and procedure — Subpoenas — Duties of sheriff and Circuit Court.

  1. The commissioner shall promulgate administrative regulations as he or she considers necessary to carry on the work of the department and the work of the administrative law judges and may promulgate administrative regulations not inconsistent with this chapter and KRS Chapter 13A for carrying out the provisions of this chapter.
  2. The commissioner shall promulgate administrative regulations on or before December 31, 2015, establishing the information necessary to be received to create an e-mail notification system where a person may enter his or her e-mail address into the Insurance Coverage Look-up database established by the Department of Workers’ Claims and be notified of any cancellation of a specific business’ workers’ compensation coverage.
  3. The commissioner shall develop or adopt life expectancy tables for use in making computations for the apportionment of benefits under KRS 342.120 , computation of attorneys’ fees under KRS 342.320 , and for use in all other situations arising under this chapter in which the calculation of a life expectancy is necessary or desirable, including the computation of assessments or reserves for self-insurers. The commissioner may adopt life tables published by the United States Department of Health and Human Services or other life tables developed by a qualified entity, as determined by the commissioner. The life tables developed or adopted by the commissioner through the promulgation of administrative regulations in effect as of the date of an opinion, award, or settlement approved by an administrative law judge shall apply to computations concerning that opinion, award, or settlement.
  4. Processes and procedures under this chapter shall be as summary and simple as reasonably possible. The board or any member thereof or any administrative law judge for the purpose of this chapter, may subpoena witnesses, administer or cause to have administered oaths, and examine or cause to have examined those parts of the books and records of the parties to a proceeding as relate to questions in dispute.
  5. The sheriff shall serve all subpoenas of the board and administrative law judges and shall receive the same fee as provided by law for like service in civil actions. Each witness who appears in obedience to the subpoena of the board or any administrative law judge shall receive for attendance the fees and mileage for witnesses in civil cases in the Circuit Courts.
  6. The Circuit Court shall, on application of the board, any member thereof, or any administrative law judge, enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers, and records.

History. 4618-112, 4930: amend. Acts 1987 (Ex. Sess.), ch. 1, § 29, effective January 4, 1988; 1994, ch. 181, Part 15, § 81, effective April 4, 1994; 1996, ch. 355, § 8, effective July 15, 1996; 1996 (1st Ex. Sess.), ch. 1, § 60, effective December 12, 1996; 2000, ch. 514, § 15, effective July 14, 2000; 2010, ch. 24, § 1807, effective July 15, 2010; 2014, ch. 80, § 2, effective July 15, 2014.

NOTES TO DECISIONS

  1. Construction.
  2. Rules and Regulations.
  3. Procedure.
  4. — Discovery.
  5. — Evidence.
  6. — Medical Records.
  7. — Witnesses.
  8. Person Hired by Agent as Employee.
1. Construction.

Spirit if not letter of law permits quite a degree of liberality on part of compensation board in investigating and accepting evidence. Standard Acci. Ins. Co. v. Hinson, 251 Ky. 287 , 64 S.W.2d 574, 1933 Ky. LEXIS 836 ( Ky. 1933 ).

2. Rules and Regulations.

The right of Board to make procedural rules for its granting of full Board review on application presented therefor is limited by express restrictive provision that rules must not be inconsistent with law. Washington v. Clover Fork Coal Co., 269 Ky. 604 , 108 S.W.2d 502, 1937 Ky. LEXIS 638 ( Ky. 1937 ).

Action of Board in rejecting deposition of witness taken by agreement was not arbitrary and unreasonable where said deposition was filed after case had been submitted after long delay from its filing and department had made express rule under authority of this section that proof was to be closed by a certain time, and the parties or their counsel could not abrogate the Board’s rules by agreement. Mitchell v. Jacks Creek Mining Co., 248 S.W.2d 926, 1952 Ky. LEXIS 774 ( Ky. 1952 ).

Where Board rules provided for automatic submission for decision of cases at first regular meeting after time for taking proof expired, decision made thereafter in case could not be set aside for lack of order of submission. Collista Coal Co. v. Castle, 407 S.W.2d 719, 1966 Ky. LEXIS 187 ( Ky. 1966 ).

The Board cannot construe its regulations in such a manner as to bring them in contravention of the statute. Winston Ford Constr. Co. v. Maggard, 560 S.W.2d 562, 1977 Ky. App. LEXIS 879 (Ky. Ct. App. 1977).

In light of KRS 342.260 , granting the commissioner of the Department of Workers’ Claims authority to promulgate administrative regulations regarding KRS Chapter 342, the commissioner’s interpretation of its regulation that required that the employee resubmit her workers’ compensation claim within 20 days was not unreasonable, where the commissioner interpreted resubmit to mean received by the commissioner. McCreary County Bd. of Educ. v. Begley, 89 S.W.3d 417, 2002 Ky. LEXIS 226 ( Ky. 2002 ).

3. Procedure.

Even though the law provides that procedure shall be as summary and simple as reasonably possible, this does not mean that the elementary and fundamental principles of a judicial inquiry should not be observed. Valentine v. Weaver, 191 Ky. 37 , 228 S.W. 1036, 1921 Ky. LEXIS 257 ( Ky. 1921 ).

Technical rules of common law and code pleading are not generally observed in proceedings before Board. T. M. Crutcher Dental Depot, Inc. v. Miller, 251 Ky. 201 , 64 S.W.2d 466, 1933 Ky. LEXIS 819 ( Ky. 1933 ).

As no formal proceedings are required in workers’ compensation cases, an application for compensation should not be construed with the same strictness as an ordinary civil proceeding. Equitable Bag Co. v. Hamblin, 478 S.W.2d 722, 1972 Ky. LEXIS 341 ( Ky. 1972 ).

4. — Discovery.

No limitation on the applicable civil discovery rules is imposed by subsection (3), which permits the administrative law judge or the Workers’ Compensation Board, either directly or indirectly, to obtain information from a claimant’s concurrent employers without their joinder as parties. Barren River District Health Dep't v. Hussey, 2000 Ky. App. LEXIS 39 (Ky. Ct. App. Apr. 14, 2000).

5. — Evidence.

Copy of letter from examining physician to insurance company’s attorneys, which gave technical description of employee’s condition and expressed opinion that employee had some permanent disability resulting from accident, was incompetent as evidence before compensation board. Standard Acci. Ins. Co. v. Hinson, 251 Ky. 287 , 64 S.W.2d 574, 1933 Ky. LEXIS 836 ( Ky. 1933 ).

Compensation board, in deciding whether to introduce evidence, must follow prevailing rules of competency of evidence. Perry McGlone Const. Co. v. Shaw, 283 Ky. 84 , 140 S.W.2d 829, 1940 Ky. LEXIS 296 ( Ky. 1940 ).

Compensation board is not required to follow strict technical rules of common-law procedure, and Court of Appeals will not disturb a judgment confirming an award because some evidence upon which the award was made was introduced in rebuttal when it should have been introduced in chief. Perry McGlone Const. Co. v. Shaw, 283 Ky. 84 , 140 S.W.2d 829, 1940 Ky. LEXIS 296 ( Ky. 1940 ).

Under this section the Board has jurisdiction to compel the production of a written statement of employee to insurance carrier of employer, which employee claimed he had signed but not read and upon which the insurance carrier was refusing to pay employee’s claim. Travelers Ins. Co. v. Carter, 314 Ky. 392 , 235 S.W.2d 1003, 1951 Ky. LEXIS 663 ( Ky. 1951 ).

6. — Medical Records.

If the employer needs temporary custody of X-rays taken by employee’s doctor in order to submit them to its witnesses in lieu of bringing the witnesses to Harlan or Frankfort, the board has the discretion to permit it under such conditions as it may deem reasonable and safe. Cox v. Peabody Coal Co., 357 S.W.2d 878, 1962 Ky. LEXIS 158 ( Ky. 1962 ).

7. — Witnesses.

If testimony of plaintiff admitted after the deposition of an agent of the defendant was taken by the plaintiffs was erroneous, where such deposition was immaterial and the facts testified to by the plaintiff were also submitted through other competent witnesses, such error was harmless. Blue Diamond Coal Co. v. Sizemore, 254 Ky. 102 , 71 S.W.2d 11, 1934 Ky. LEXIS 40 ( Ky. 1934 ).

Refusal of Workers’ Compensation Board to hear depositions of witnesses residing more than 20 miles from place of hearing was not prejudicial error where most of witnesses appeared and testified in person at later hearing, decision of Board was based on finding that death of employee was not due to traumatic injury, and there was ample evidence to support board’s finding. Inland Steel Co. v. Newsome, 281 Ky. 681 , 136 S.W.2d 1077, 1940 Ky. LEXIS 89 ( Ky. 1940 ).

8. Person Hired by Agent as Employee.

New Workers’ Compensation Board did not err by finding that a person hired under implied authority of an agent could be an employee for the purposes of this statute. Mill Street Church of Christ v. Hogan, 785 S.W.2d 263, 1990 Ky. App. LEXIS 32 (Ky. Ct. App. 1990).

Cited:

Workers’ Compensation Bd. v. Siler, 840 S.W.2d 812, 1992 Ky. LEXIS 166 ( Ky. 1992 ); Staton v. Poly Weave Bag Co., 930 S.W.2d 397, 1996 Ky. LEXIS 81 ( Ky. 1996 ); Howard v. Peabody Coal Co., 185 S.W.3d 165, 2006 Ky. LEXIS 48 ( Ky. 2006 ).

Opinions of Attorney General.

The sheriff is entitled to collect the usual fee for serving subpoenas in litigation before the Workers’ Compensation Board. However, where the board has not collected any costs in the case, it would be proper to make collection from the party or counsel for whom the subpoena was issued. OAG 62-878 .

Research References and Practice Aids

Cross-References.

Administrative regulations, when effective, KRS 13A.330 .

Kentucky Bench & Bar.

Schilling, The New Workmen’s Compensation Rules, Vol. 44, No. 1, January 1980, Ky. Bench & Bar 22.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

Northern Kentucky Law Review.

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

342.262. Legislative findings — Commissioner to give recommendation on new edition of “Guides to the Evaluation of Permanent Impairment” — Approval of General Assembly required to effectuate.

  1. The General Assembly hereby declares it to be the policy of the Commonwealth of Kentucky that the most recent and valid scientific and technological advancements in medicine be considered in evaluating the nature and extent of an injured worker’s impairment.
    1. Therefore, within one hundred eighty (180) days of publication by the American Medical Association of a new edition of the “Guides to the Evaluation of Permanent Impairment,” the commissioner shall recommend to the General Assembly whether all or a portion of the new edition should be enacted by the General Assembly in order to produce more equitable and accurate ratings of permanent impairment resulting from work-related injuries. (2) (a) Therefore, within one hundred eighty (180) days of publication by the American Medical Association of a new edition of the “Guides to the Evaluation of Permanent Impairment,” the commissioner shall recommend to the General Assembly whether all or a portion of the new edition should be enacted by the General Assembly in order to produce more equitable and accurate ratings of permanent impairment resulting from work-related injuries.
    2. Prior to making the recommendation required in paragraph (a) of this subsection, the commissioner shall:
      1. Consult with medical providers, representatives of injured workers, employers and representatives of employers, insurance carriers, and legal representatives of employers and injured workers; and
      2. Consider studies and analyses conducted by workers’ compensation rating organizations, including the National Council on Compensation Insurance (NCCI).
  2. The recommendation of the commissioner shall not become effective unless the General Assembly approves and adopts the recommendation.

History. Enact. Acts 2010, ch. 90, § 2, effective July 15, 2010.

Legislative Research Commission Note.

(7/15/2010). References to the “executive director” of workers’ claims in subsections (2) and (3) of this section, as created by 2010 Ky. Acts ch. 90, sec. 2, have been changed in codification to the “commissioner” of workers’ claims to reflect the reorganization of certain parts of the Executive Branch, as set forth in Executive Order 2009-535 and confirmed by the General Assembly in 2010 Ky. Acts ch. 24. These changes were made by the Reviser of Statutes pursuant to 2010 Ky. Acts ch. 24, sec. 1938.

342.265. Compensation agreement — Approval by administrative law judge — Lump-sum payments — Reopening as remedy for disagreement — Abatement of application for resolution.

  1. If the employee and employer and special fund or any of them reach an agreement conforming to the provisions of this chapter in regard to compensation, a memorandum of the agreement signed by the parties or their representatives shall be filed with the commissioner, and, if approved by an administrative law judge, shall be enforceable pursuant to KRS 342.305 . Where all parties have not joined in the settlement agreement, it shall not be approved unless it is certified that the party not participating in the settlement has been served with a copy of the agreement not less than ten (10) days prior to submission of the agreement for approval. This provision shall not be construed to prevent the voluntary payment of compensation for the periods and in the amounts prescribed by this chapter, but nothing shall operate as a final settlement except a memorandum of agreement filed with the commissioner and approved by the administrative law judge. Upon claims settled after December 12, 1996, the special fund shall have the option of settling its liability for income benefits on the same terms as those reached between the employee and employer. Notice of the special fund exercise of the option granted in this subsection shall be made by letter of the director of the Division of Workers’ Compensation Funds mailed to the parties within ten (10) days of receipt by the director of a copy of the agreement.
  2. Settlement agreements concluded after July 14, 2000, providing for commuted lump-sum payment of future income benefits which would otherwise be payable in amounts greater than one hundred dollars ($100) per week shall not be approved unless there is reasonable assurance that the worker will have an adequate source of income during disability. This subsection is remedial and applies to all pending and future claims.
  3. Upon lump-sum settlement of future periodic payments, the discount rate used in the calculation of the settlement amount shall be fixed by the commissioner. Before January 1 of each year commencing in 2001, the commissioner shall fix the discount rate to be utilized in the succeeding year based at one-half of one percent (0.5%) below the interest rate paid upon ten (10) year United States Treasury notes as of August 1 of the preceding year. However, upon lump-sum settlement of future periodic payments in weekly amounts that are forty dollars ($40) or less, the commissioner shall fix the discount rate used in the succeeding year based at the interest rate paid upon ten (10) year United States Treasury notes as of August 1 of the preceding year.
  4. If the parties have previously filed an agreement which has been approved by the administrative law judge, and compensation has been paid or is due in accordance therewith and the parties thereafter disagree, either party may invoke the provisions of KRS 342.125 , which remedy shall be exclusive.
  5. An application for resolution of claim shall be held in abeyance during any period voluntary payments of income benefits are being made under any benefit sections of this chapter to the maximum which the employee’s wages shall entitle unless it shall be shown that the prosecution of the employee’s claim would be prejudiced by delay.

HISTORY: 4931: amend. Acts 1952, ch. 182, § 10; 1960, ch. 147, § 14; 1987 (Ex. Sess.), ch. 1, § 30, effective January 4, 1988; 1990, ch. 2, § 1, effective July 13, 1990; 1996 (1st Ex. Sess.), ch. 1, § 11, effective December 12, 1996; 2000, ch. 514, § 16, effective July 14, 2000; 2002, ch. 246, § 4, effective July 15, 2002; 2010, ch. 24, § 1808, effective July 15, 2010; 2018 ch. 40, § 6, effective July 14, 2018.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Purpose.
  3. Agreement.
  4. — Approval.
  5. — Void.
  6. — Out-of-State Employees.
  7. — Evidence.
  8. — Parties.
  9. — Fraud.
  10. — Waiver of Limitations.
  11. — Review.
  12. Voluntary Payment.
  13. — Final Settlement.
  14. Dismissal.
  15. Board Approval Required.
  16. — Finality.
  17. Credit to Employer.
  18. Employer’s Release from Liability.
  19. Discount.
  20. — Attorney’s Fee.
  21. Commutation from Life Expectancy.
  22. Open-Ended Award.
  23. Acceleration of Liability.
  24. Post-Award Settlement.

3.5. —Enforcement.

1. Constitutionality.

Future benefits payable pursuant to a workers’ compensation award to continue during disability may be commuted to a lump sum for the purpose of the payment of the fee of the attorney for the claimant or other benefit of the claimant without violating either the United States or Kentucky Constitutions. Livingston County Farm Supply, Inc. v. Spencer, 593 S.W.2d 76, 1979 Ky. LEXIS 319 ( Ky. 1979 ) (decided under prior law).

Commuting future payments to make a lump-sum payment to the claimant himself did not violate Const., § 2 or the Fourteenth Amendment; the fact that a person may not live out his life expectancy calculated as of the date of injury did not subject the fund and employer to an undue risk of overpayment. Livingston County Farm Supply, Inc. v. Spencer, 593 S.W.2d 76, 1979 Ky. LEXIS 319 ( Ky. 1979 ) (decided under prior law).

2. Purpose.

The plain purpose of the compensation law is that the Board be given the opportunity to pass upon the terms of compensation settlements and thus protect the interests of the workers. Skaggs v. Wood Mosaic Corp., 428 S.W.2d 617, 1968 Ky. LEXIS 722 ( Ky. 1968 ).

The basic purpose and policy of the compensation law is to prevent an employee who has a claim under KRS Chapter 342 from signing it away without the approval of the Board. Industrial Track Builders v. Lemaster, 429 S.W.2d 403, 1968 Ky. LEXIS 750 ( Ky. 1968 ).

The administrative law judge is empowered under this section to look behind a settlement agreement, where the agreement appears not to be in the interest of the worker, and where there is cause to do so. Commercial Drywall v. Wells, 860 S.W.2d 299, 1993 Ky. App. LEXIS 112 (Ky. Ct. App. 1993).

It is well established that the Workers’ Compensation Act is social legislation which encompasses a number of public policy considerations. Foremost of these is the policy of compensating disabled workers for the decrease in their wage earning capacity which has resulted from an injury caused by work. Second, with the goal of promoting the prompt disposition of compensation claims and of controlling the expense of prosecuting a claim, both the legislature and the courts have adopted a policy encouraging the settlement of these claims. Newberg v. Weaver, 866 S.W.2d 435, 1993 Ky. LEXIS 125 ( Ky. 1993 ).

3. Agreement.

Law gave employer and employee right to make compensation agreement as if employee had made proper election by signing register, even after employee sustained his injuries. Kentucky Road Oiling Co. v. Sharp, 257 Ky. 378 , 78 S.W.2d 38, 1934 Ky. LEXIS 561 ( Ky. 1934 ).

An “agreement” within the meaning of this section is simply a “mutual understanding.” Skaggs v. Wood Mosaic Corp., 428 S.W.2d 617, 1968 Ky. LEXIS 722 ( Ky. 1968 ).

A stipulation between the claimant and his employer as to his past wages and maximum recovery did not have to be treated as an agreement for compensation subject to the Board’s approval. Young v. Moore, 459 S.W.2d 591, 1970 Ky. LEXIS 135 ( Ky. 1970 ).

In a medical fee dispute and reopening of a workers’ compensation claim, an alleged settlement agreement was incomplete because the parties clearly had not come to terms concerning the portion of the lump sum to be allocated to the Medicare Set-Aside Account and thus was not a settlement agreement pursuant to KRS 342.265(1). Hudson v. Cave Hill Cemetery, 331 S.W.3d 267, 2011 Ky. LEXIS 8 ( Ky. 2011 ).

3.5. —Enforcement.

In a workers' compensation case, an administrative law judge's rendered opinion and award did not prohibit the parties from reaching a subsequent settlement of the issues in question after the proof was reopened. If the e-mails between counsel for indeed memorialized all of the terms to which they agreed, the agreement was valid and enforceable. Cross Maint., LLC v. Riddle, 2015 Ky. App. LEXIS 68 (Ky. Ct. App. May 15, 2015), aff'd, 2016 Ky. Unpub. LEXIS 20 (Ky. Mar. 17, 2016).

4. — Approval.

Agreement as to compensation for employee’s injuries entered into by employee and employer and filed with and approved by Board becomes in effect an award of the Board. Sawyers v. Lena Rue Coal Co., 217 Ky. 500 , 289 S.W. 1107, 1927 Ky. LEXIS 6 ( Ky. 1927 ). See Rex Coal Co. v. Campbell, 213 Ky. 636 , 281 S.W. 1039, 1926 Ky. LEXIS 586 ( Ky. 1926 ); Standard Acci. Ins. Co. v. Hinson, 251 Ky. 287 , 64 S.W.2d 574, 1933 Ky. LEXIS 836 ( Ky. 1933 ); Stearns Coal & Lumber Co. v. Whalen, 266 Ky. 227 , 98 S.W.2d 499, 1936 Ky. LEXIS 6 35 ( Ky. 1936 ).

An agreement between employer and employee for payment of compensation where approved by the Board has the force and effect of an award. Wallins Creek Lumber Co. v. Blanton, 228 Ky. 649 , 15 S.W.2d 465, 1929 Ky. LEXIS 612 ( Ky. 1929 ).

An agreement between employer and employee for payment of compensation must be approved by the Workers’ Compensation Board before it can have the force and effect of an award and, until this is done, it is considered only as an agreement to voluntarily pay compensation. Huckabee v. Black Mountain Corp., 232 Ky. 599 , 24 S.W.2d 299, 1930 Ky. LEXIS 48 ( Ky. 1930 ).

Adjustment or compromise agreements can only be made with the approval of the Compensation Board. Morrison v. Carbide & Carbon Chemicals Corp., 278 Ky. 746 , 129 S.W.2d 547, 1939 Ky. LEXIS 494 ( Ky. 1939 ).

When an agreement is approved by the Compensation Board, it acquires the force and effect of an award of the Board. Jude v. Cubbage, 251 S.W.2d 584, 1952 Ky. LEXIS 929 ( Ky. 1952 ).

When the Compensation Board approved the agreement the parties had filed with Board, it then became enforceable as an award of the Board. Heaston v. Berndsen-Jones, Inc., 438 S.W.2d 795, 1969 Ky. LEXIS 421 ( Ky. 1969 ).

Where an employee injured on the job, entered into a settlement agreement with the employer and employer’s insurance carrier and submitted the agreement to the Workers’ Compensation Board for approval, that approval became the final order of the Board. Yocom v. Jordan Auto Parts Co., 521 S.W.2d 519, 1975 Ky. LEXIS 159 ( Ky. 1975 ).

Any settlement of claims made under the Workers’ Compensation Act must be approved by the Board in conformance with this section. Kentucky Workmen's Compensation Board v. Alexander, 562 S.W.2d 670, 1978 Ky. App. LEXIS 475 (Ky. Ct. App. 1978).

This section’s requirements governing approval and enforcement of compensation agreements in workers’ compensation cases were not met where the record on appeal revealed the presence of no written documents or correspondence setting out terms of an alleged settlement. Carter v. Taylor, 790 S.W.2d 448, 1990 Ky. App. LEXIS 70 (Ky. Ct. App. 1990).

Administrative law judge had jurisdiction and a statutory mandate under KRS 342.325 and KRS 342.700 to review a settlement agreement reached between an employee and his employer to determine how much reimbursement, if any, was due the employer relative to a compensation subrogation lien. Greene v. Paschall Truck Lines, 239 S.W.3d 94, 2007 Ky. App. LEXIS 416 (Ky. Ct. App. 2007).

5. — Void.

Agreement by parties that a widow, conclusively presumed wholly dependent upon her deceased husband, was only 50% dependent was not valid and could not be approved. Rockhouse Coal Co. v. Collins, 212 Ky. 137 , 278 S.W. 540, 1925 Ky. LEXIS 1089 ( Ky. 1925 ).

Employer-employee settlement was void where it was not approved by Compensation Board. Stearns Coal & Lumber Co. v. Duncan, 271 Ky. 800 , 113 S.W.2d 436, 1938 Ky. LEXIS 55 ( Ky. 1938 ).

Alleged oral agreement between employer and employee that employer would give injured employee benefits in addition to an approved compensation award was contrary to the policy of the compensation law and was void. Morrison v. Carbide & Carbon Chemicals Corp., 278 Ky. 746 , 129 S.W.2d 547, 1939 Ky. LEXIS 494 ( Ky. 1939 ).

6. — Out-of-State Employees.

Where the claimant was hired in and paid from Kentucky but worked in Indiana a substantial part of the time and was injured there, an agreement for compensation made in Indiana and pursuant to its laws was one which could not have a binding effect in Kentucky unless and until filed with and approved by the Kentucky Board. Industrial Track Builders v. Lemaster, 429 S.W.2d 403, 1968 Ky. LEXIS 750 ( Ky. 1968 ).

7. — Evidence.

Where employer required employee to sign receipts for compensation, such receipts were a sufficient memorandum in regard to compensation. Junior Oil Co. v. Byrd, 204 Ky. 375 , 264 S.W. 846, 1924 Ky. LEXIS 461 ( Ky. 1924 ), limited, Spencer v. Chavies Coal Co., 280 Ky. 152 , 132 S.W.2d 746, 1939 Ky. LEXIS 77 ( Ky. 1939 ).

The agreement need not be in writing as long as there is written evidence, such as a letter and canceled check, for the memorandum which must be filed. Skaggs v. Wood Mosaic Corp., 428 S.W.2d 617, 1968 Ky. LEXIS 722 ( Ky. 1968 ).

Letters of correspondence between attorneys for an employer and a workers’ compensation claimant clearly indicated an offer and acceptance, and thus constituted a memorandum of agreement; therefore, remand to the administrative law judge was upheld in order to consider the substance of the agreement rather than its form. Coalfield Tel. Co. v. Thompson, 113 S.W.3d 178, 2003 Ky. LEXIS 153 ( Ky. 2003 ).

8. — Parties.

Where bigamous wife of employee entered into agreement with employer to reduce compensation by 15% by reason of employee working in dangerous place in violation of employer’s rules, such agreement was binding on lawful wife and child who made application to be substituted for bigamous wife. Johnson v. Hardy-Burlingham Mining Co., 205 Ky. 752 , 266 S.W. 635, 1924 Ky. LEXIS 227 ( Ky. 1924 ).

Compensation agreement signed only by widow of deceased employee was valid for all dependent children on whose behalf it was made, since power of widow to apply for and receive compensation on behalf of her minor children carries with it power to execute agreement on their behalf. Holt Bros. Min. Co. v. Fisher, 255 Ky. 418 , 74 S.W.2d 469, 1934 Ky. LEXIS 248 ( Ky. 1934 ).

Filing with the Board a compensation settlement signed by administrator of deceased employee is no evidence that a settlement between parties has been made under the compensation law, since only the dependents of the deceased, and not his administrator, have a claim under the law. Taylor v. Cornett Lewis Coal Co., 281 Ky. 366 , 136 S.W.2d 21, 1940 Ky. LEXIS 36 ( Ky. 1940 ).

In worker’s compensation cases, this section clearly permits the employer and employee to enter into a settlement agreement, subject to approval by the Board (now the Administrative Law Judge), which agreement becomes an award upon approval. This settlement may be made prior to the hearing and award made by the Board, or even application filed under the provisions of the Act. This action being no longer derivative, settlement with one co-defendant, under the terms and conditions found herein, does not extinguish the claim against the other co-defendant. Palmore v. Helton, 779 S.W.2d 196, 1989 Ky. LEXIS 74 ( Ky. 1989 ).

9. — Fraud.

Injured employee who admitted he could read and write was precluded from saying that he did not know contents of form he signed and that he had no knowledge that checks were being paid to, accepted, and receipted by him under compensation law, absent showing of fraud. Kentucky Road Oiling Co. v. Sharp, 257 Ky. 378 , 78 S.W.2d 38, 1934 Ky. LEXIS 561 ( Ky. 1934 ).

Even if employer’s officer stated to injured employee that company would take care of him, such statement did not constitute fraud sufficient to avoid employer’s plea of estoppel based on employee’s acceptance of payment under compensation law. Kentucky Road Oiling Co. v. Sharp, 257 Ky. 378 , 78 S.W.2d 38, 1934 Ky. LEXIS 561 ( Ky. 1934 ).

10. — Waiver of Limitations.

Any agreement between employee and employer (or its insurer) with regard to an existing claim under KRS Chapter 342 is subject to the provisions of this section and an agreement to waive a Kentucky claim and proceed under the law of some other jurisdiction is no exception. Industrial Track Builders v. Lemaster, 429 S.W.2d 403, 1968 Ky. LEXIS 750 ( Ky. 1968 ).

11. — Review.

The Circuit Court had no jurisdiction to review an agreement between employer and employee compromising a claim for compensation which had never been submitted to and approved by the Workers' Compensation Board. Workmen's Compensation Board v. Abbott, 212 Ky. 123 , 278 S.W. 533, 1925 Ky. LEXIS 1088 ( Ky. 1925 ).

If a voluntary settlement agreement has been filed with the compensation board, as provided in this section, it becomes an award of the Board and can be reopened and reviewed at any time during the compensation period on the ground of fraud or mistake. Fiorella v. Clark, 298 Ky. 817 , 184 S.W.2d 208, 1944 Ky. LEXIS 1011 ( Ky. 1944 ).

When presented with a settlement of claims the Circuit Court should abate its appeal proceedings and return the record to the Board and the parties may then file their memorandum of agreement with the Board; when approved, the Circuit Court should dismiss the appeal, but if the settlement is not approved, the parties should make such order a part of the record on appeal. Kentucky Workmen's Compensation Board v. Alexander, 562 S.W.2d 670, 1978 Ky. App. LEXIS 475 (Ky. Ct. App. 1978).

Final award means an enforceable award of the Board; the fact that a settlement agreement is made final does not forever preclude all other actions that may be taken in connection with that award, such as review or reopening pursuant to KRS 342.125 . American Standard, Inc. v. Stephen, 565 S.W.2d 158, 1978 Ky. App. LEXIS 505 (Ky. Ct. App. 1978).

Where, prior to entering into a settlement agreement, the employee had no opportunity to make the special fund a party, as the agreement and award were for temporary-total disability, but once the employee discovered the true nature and extent of his disability, he sought to make the special fund a party at his first opportunity to do so, and where there was no evidence that either party withheld any information from the other, the Board correctly reopened the award, made the special fund a party, and apportioned the award. American Standard, Inc. v. Stephen, 565 S.W.2d 158, 1978 Ky. App. LEXIS 505 (Ky. Ct. App. 1978).

A settlement between employer and employee filed with the Board and approved by the Board is an award and is subject to reopening. Schulte v. Workmen's Compensation Board, 571 S.W.2d 108, 1978 Ky. App. LEXIS 587 (Ky. Ct. App. 1978).

12. Voluntary Payment.

Where employer paid amounts to employee for medical services, nursing, and hospitalization under board-approved agreement, such amounts could not be credited on compensation award unless they were made at employee’s request and with understanding that they should be deducted from his weekly payments. Stearns Coal & Lumber Co. v. Whalen, 266 Ky. 227 , 98 S.W.2d 499, 1936 Ky. LEXIS 635 ( Ky. 1936 ).

This section expressly recognizes that voluntary payments of compensation may be made without formal agreement, and it is clear this section contemplates suspension of limitations only where an agreement has been reached (but not filed and approved) that purports to fix the compensation liability. Whitis v. O. P. Link Handle Co., 378 S.W.2d 612, 1964 Ky. LEXIS 189 ( Ky. 1964 ).

13. — Final Settlement.

It is competent for the employer to pay, and for the employee to receive, voluntary payments without such understanding ever becoming an award, but nothing shall operate as a final settlement except a memorandum of the agreement filed with and approved by the Board. Johnson v. J. P. Taylor Co., 211 Ky. 821 , 278 S.W. 169, 1925 Ky. LEXIS 976 ( Ky. 1925 ).

14. Dismissal.

Where employer and employee made lump-sum payment agreement which involved dismissal of case so that there was no longer any case before compensation board, employee could not later have Board reopen case as there was no case to reopen, and his petition to reopen was dismissed. Edgemont Fuel Co. v. Patton, 256 Ky. 538 , 76 S.W.2d 284, 1934 Ky. LEXIS 434 ( Ky. 1934 ), overruled in part, Low Moisture Coal Co. v. Vandiver, 260 S.W.2d 395, 1953 Ky. LEXIS 972 ( Ky. 1953 ). But see Low Moisture Coal Co. v. Vandiver, 260 S.W.2d 395, 1953 Ky. LEXIS 972 ( Ky. 1953 ).

When compensation claim is pending before Board, claim cannot be dismissed with prejudice unless Board approves. Kentucky Workmen's Compensation Board v. Haungs, 373 S.W.2d 724, 1963 Ky. LEXIS 169 ( Ky. 1963 ).

15. Board Approval Required.

A lump-sum settlement was set aside because it was made without the approval of the board. Workmen's Compensation Board v. Abbott, 212 Ky. 123 , 278 S.W. 533, 1925 Ky. LEXIS 1088 ( Ky. 1925 ) (decided under prior law).

The Court of Appeals had no jurisdiction to enter an order dismissing as settled an appeal from the Circuit Court in which an award of the compensation board was affirmed, notwithstanding the parties had entered into an agreement providing for a lump-sum settlement which was never approved by the Board. Stewart v. Model Coal Co., 216 Ky. 742 , 288 S.W. 696, 1926 Ky. LEXIS 1003 ( Ky. 1926 ) (decided under prior law).

An agreement providing for a certain sum of money to be paid in a lump sum which was not an award of the board was void. Hatfield v. Billiter & Wiley, 231 Ky. 736 , 22 S.W.2d 129, 1929 Ky. LEXIS 357 ( Ky. 1929 ) (decided under prior law).

Payment of lump-sum settlements can only be made by approval of compensation board and must be paid to court-appointed trustee for the benefit of person or persons entitled to such compensation. Mullins v. Jennings' Guardian, 273 Ky. 68 , 115 S.W.2d 340, 1938 Ky. LEXIS 580 ( Ky. 1938 ) (decided under prior law).

16. — Finality.

Under former section regarding lump-sum compensation prior to its repeal it lies within the discretion of the board to determine whether or not future payments of compensation may be commuted to a lump sum and the order or decision of the board in this regard is final and not reviewable by the courts. Wakenva Coal Co. v. Deaton, 233 Ky. 393 , 25 S.W.2d 1024, 1930 Ky. LEXIS 568 ( Ky. 1930 ) (decided under prior law).

In the absence of fraud, the Court of Appeals has no jurisdiction to control the action of the Workers’ Compensation Board in directing or refusing to direct a partial or complete lump-sum settlement. Black Mountain Corp. v. Davenport, 280 Ky. 302 , 133 S.W.2d 102, 1939 Ky. LEXIS 128 ( Ky. 1939 ) (decided under prior law).

17. Credit to Employer.

Where employee made lump-sum settlement, and award was later increased on reopening of case, employer was entitled to credit for sums it would have paid up to date of motion to reopen if settlement had not been made. Lincoln Coal Co. v. Watts, 275 Ky. 130 , 120 S.W.2d 1026, 1938 Ky. LEXIS 381 ( Ky. 1938 ) (decided under prior law).

Where the claimant’s lump-sum payment for his earlier disability was a settlement, as permitted by this section, for a weekly amount to be paid over a period of time and such period of time overlapped with the time used in calculating the claimant’s permanent total disability, then, as to that overlapping period, the claimant could only be 100% disabled; thus, the employer and the special fund must be credited in proportion to the amount of their respective liabilities for the amount and duration of the overlapping period as found by the Board and not the lump-sum award actually received by the claimant distributed over the time of the compensation. General Refractories Co. v. Herron, 566 S.W.2d 433, 1977 Ky. App. LEXIS 919 (Ky. Ct. App. 1977) (decided under prior law).

18. Employer’s Release from Liability.

When court-appointed trustee receives lump-sum compensation settlement with board approval, employer or his insurer becomes completely discharged from further liability for compensation. Mullins v. Jennings' Guardian, 273 Ky. 68 , 115 S.W.2d 340, 1938 Ky. LEXIS 580 ( Ky. 1938 ) (decided under prior law).

19. Discount.

It was error for a trial court to deduct the full amount of a driver’s workers’ compensation permanent partial disability (PPD) award, including amounts not yet paid, from the jury’s verdict in favor of the driver in his claim for underinsured motorist coverage; the trial court should have limited the credit to PPD benefits actually received by the driver and the present value of his entitlement to future benefits if commuted to a present lump sum. Cincinnati Ins. Co. v. Samples, 192 S.W.3d 311, 2006 Ky. LEXIS 139 ( Ky. 2006 ).

20. — Attorney’s Fee.

Where award was payable to claimant over 425 weeks and attorney’s fee was commuted from final payment thereof, a discount of 5% per annum of the amount of the attorney fee was authorized and could be deducted from final payments notwithstanding it exceeded 20% of the award. Hicks v. General Refractories Co., 405 S.W.2d 734, 1966 Ky. LEXIS 264 ( Ky. 1966 ) (decided under prior law).

There exists no provision for an attorney fee lump-sum payment discount under former KRS 342.320(2)(c). Beale v. Wright, 801 S.W.2d 319, 1990 Ky. LEXIS 149 ( Ky. 1990 ) (decided under prior law).

21. Commutation from Life Expectancy.

Lump-sum payments for the benefit of the claimant may be commuted from his life expectancy if attorneys’ fees have not been commuted, or from that portion of his life expectancy remaining after commutation if attorneys’ fees have been commuted. Livingston County Farm Supply, Inc. v. Spencer, 593 S.W.2d 76, 1979 Ky. LEXIS 319 ( Ky. 1979 ) (decided under prior law).

22. Open-Ended Award.

There is no way of calculating the value of an open-ended award which is payable so long as the injured worker remains disabled by the lump-sum method. Louisville & Jefferson County Metropolitan Sewer Dist. v. Kalbhin, 687 S.W.2d 549, 1984 Ky. App. LEXIS 643 (Ky. Ct. App. 1984) (decided under prior law).

23. Acceleration of Liability.

Since the language of the settlement agreement stated that the Special Fund’s liability would not begin until the year 2005, the Circuit Court could not accelerate its liability. Clearly, the Circuit Court had authority to enforce the settlement agreement between the parties, but, the agreement did not provide that the Special Fund’s liability could be accelerated if a lump-sum settlement agreement was reached between the claimant and the employer. There is authority to accelerate the liability of the Special Fund in situations involving a unilateral settlement between a claimant and an employer if that settlement is entered into prior to a final decision by the Administrative Law Judge. However, there is no such authority to accelerate its liability when the settlement agreement is entered into after the original award is entered. Newburg v. Everidge, 840 S.W.2d 833, 1992 Ky. App. LEXIS 225 (Ky. Ct. App. 1992) (decided under prior law).

24. Post-Award Settlement.

Any post-award settlement was governed by the language of former law regarding payments which required that all parties be involved in any post-award agreement. Newburg v. Everidge, 840 S.W.2d 833, 1992 Ky. App. LEXIS 225 (Ky. Ct. App. 1992) (decided under prior law).

Cited:

Sears, Roebuck & Co. v. Broughton, 195 F.2d 95, 1952 U.S. App. LEXIS 2907 (6th Cir. 1952), cert. denied, 343 U.S. 953, 72 S. Ct. 1047, 96 L. Ed. 1354, 1952 U.S. LEXIS 2089 (1952); Cody v. Combs, 302 Ky. 596 , 194 S.W.2d 525, 1946 Ky. LEXIS 656 ( Ky. 1946 ); Cornwell v. Commonwealth, 304 Ky. 182 , 200 S.W.2d 286, 1947 Ky. LEXIS 607 ( Ky. 1947 ); Adkins v. International Harvester Co., 286 S.W.2d 528, 1956 Ky. LEXIS 420 ( Ky. 1956 ); Little v. Persun Constr. Co., 332 S.W.2d 647, 1960 Ky. LEXIS 169 ( Ky. 1960 ); Gregory v. Louisville Taxicab & Transfer Co., 356 S.W.2d 760, 1961 Ky. LEXIS 22 ( Ky. 1961 ); Huber & Huber Motor Freight Co. v. Workmen’s Compensation Board, 371 S.W.2d 481, 1963 Ky. LEXIS 98 ( Ky. 1963 ); Roberts v. Tennessee-Virginia Constr. Co., 407 S.W.2d 400, 1966 Ky. LEXIS 153 ( Ky. 1966 ); Turner Elkhorn Mining Co. v. O’Bryan, 414 S.W.2d 410, 1967 Ky. LEXIS 355 ( Ky. 1967 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 64 Ky. L.J. 307 (1975-76).

Northern Kentucky Law Review.

Comments, Kentucky Workmen’s Compensation Benefits — Apportionment and Computation, 6 N. Ky. L. Rev. 91 (1979).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Contracts, § 210.00.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Breach of Written Contract (General Form), Form 210.04.

Caldwell’s Kentucky Form Book, 5th Ed., Answer Asserting Various Defenses Based upon Writing or Signature Formalities or Lack of Definiteness, Form 210.16.

342.267. Unfair claims settlement practices — Penalties.

If an insurance carrier, self-insured group, or self-insured employer providing workers’ compensation coverage engages in claims settlement practices in violation of this chapter, or the provisions of KRS 304.12-230 , the commissioner of the Department of Workers’ Claims shall fine the insurance company, self-insured group, or self-insured employer the sum of one thousand dollars ($1,000) to five thousand dollars ($5,000) for each violation and if they have a pattern of violations, the commissioner may revoke the certificate of self-insurance or request the commissioner of insurance to revoke the certificate of authority of the insurance carrier or the self-insured group.

History. Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 80, effective December 12, 1996; 2005, ch. 7, § 40, effective March 1, 2005; 2010, ch. 24, § 1809, effective July 15, 2010.

NOTES TO DECISIONS

  1. Exclusivity of Workers’ Compensation.
  2. Estoppel.
  3. Attorney’s Fees.
1. Exclusivity of Workers’ Compensation.

Worker’s private cause of action against a workers’ compensation insurer was barred by the exclusive remedy provision of the workers’ compensation laws. Neither KRS 342.267 nor KRS 446.070 authorized the worker’s private cause of action against the workers’ compensation insurer for an alleged unfair claims settlement practice. Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 2003 Ky. LEXIS 86 ( Ky. 2003 ).

2. Estoppel.

KRS ch. 342 provided no remedy to a workers’ compensation claimant who received a WC-3 letter but failed to file a timely application for permanent income and medical benefits due to a carrier’s subsequent misconduct; however, KRS 342.267 and 803 KAR 25:240 broadened the circumstances that warranted an estoppel as it provided new grounds for deeming a carrier’s silence to be misleading. Hitachi Auto. Prods. USA, Inc. v. Craig, 279 S.W.3d 123, 2008 Ky. LEXIS 238 ( Ky. 2008 ).

3. Attorney’s Fees.

Because neither KRS 342.320 nor any other provision in the workers’ compensation laws authorized attorney’s fees for filing a complaint for unfair insurance claims settlement practices under KRS 342.267 , an employee’s motion for such fees was properly denied. Mitchell v. TFE Group, 276 S.W.3d 814, 2009 Ky. LEXIS 3 ( Ky. 2009 ).

Cited:

Lynch v. Lear Seating Corp., — F. Supp. 2d —, 2002 U.S. Dist. LEXIS 13452 (W.D. Ky. 2002 ); Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 2003 Ky. LEXIS 86 ( Ky. 2003 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Kemp & Kemp, Kentucky Workers’ Compensation Law Update: Issues Facing Employers, Employees, Medical Providers, Insurers and Practitioners as House Bill 1 Continues to Evolve, 26 N. Ky. L. Rev. 67 (1999).

Jackson and Crase, A Surveyof Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

342.270. Application for resolution of claim — Joinder — Assignment to administrative law judge — Administrative regulations for procedures for resolution of claims.

  1. If the parties fail to reach an agreement in regard to compensation under this chapter, either party may make written application for resolution of claim. The application must be filed within two (2) years after the accident, or, in case of death, within two (2) years after the death, or within two (2) years after the cessation of voluntary payments, if any have been made. When the application is filed by the employee or during the pendency of that claim, he or she shall join all causes of action against the named employer which have accrued and which are known, or should reasonably be known, to him or her. Failure to join all accrued causes of action will result in such claims being barred under this chapter as waived by the employee.
  2. Except with respect to claims for benefits by reason of pneumoconiosis, the commissioner shall issue notice of the filing to all parties and shall promptly assign the claim to an administrative law judge. The administrative law judge shall facilitate the exchange of information pertinent to the claim pursuant to administrative regulations promulgated by the commissioner. Within forty-five (45) days of the date of issuance of the notice required by this section, the employer or carrier shall file notice of claim denial or acceptance, setting forth specifically those material matters which are admitted, those which are denied, and the basis of any denial of the claim.
  3. Within one hundred twenty (120) days of July 14, 2018, the commissioner shall promulgate or amend existing administrative regulations establishing procedures for the resolution of claims. The administrative regulations promulgated pursuant to the provisions of this subsection shall be effective on an emergency basis and be applied to all pending claims.

HISTORY: 4932: amend. Acts 1948, ch. 64, § 14; 1964, ch. 192, § 19; 1970, ch. 16, § 1; 1974, ch. 191, § 1; 1987 (Ex. Sess.), ch. 1, § 31, effective January 4, 1988; 1994, ch. 181, Part 3, § 14, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 12, effective December 12, 1996; 2000, ch. 514, § 17, effective July 14, 2000; 2010, ch. 24, § 1810, effective July 15, 2010; 2018 ch. 40, § 7, effective July 14, 2018.

Compiler’s Notes.

Most of the cases annotated below were decided under prior provisions of this statute.

NOTES TO DECISIONS

  1. Application.
  2. Construction.
  3. Hearing.
  4. Evidence.
  5. Statute of Limitations.
  6. — Tolling.
  7. — — Voluntary Payments.
  8. — Estoppel.
  9. Apportionment of Award.
  10. Dismissal of Claim.
  11. Stipulation.
  12. Believability of Witness.
  13. Joinder of Accrued Claims.
1. Application.

This section applies to two situations: (1) where the parties have failed to reach an agreement in regard to compensation; and (2) where the parties have filed an agreement with the Board and thereafter disagreed before the agreement has been approved by the Board. Cornwell v. Commonwealth, 304 Ky. 182 , 200 S.W.2d 286, 1947 Ky. LEXIS 607 ( Ky. 1947 ). See Katterjohn v. Adams, 249 S.W.2d 952, 1952 Ky. LEXIS 890 ( Ky. 1952 ).

CR 15.02 and KRS 342.270(1) are not in conflict with one another, and may be construed in a way to give effect to both provisions; therefore, CR 15.02 and the purpose behind the rule need not “give way” to KRS 342.270(1). Hodge v. Ford Motor Co., 124 S.W.3d 460, 2003 Ky. App. LEXIS 324 (Ky. Ct. App. 2003).

2. Construction.

Since “shall” as used in this section and KRS 342.275 and 803 KAR 25.011 § 5(5) and § 10(1) was not meant to decree that, in all cases, a hearing shall be held regardless of the circumstances, and the holding of a conference and hearing contemplates that the process of discovery, proof-taking, and the delineation of issues will have already begun and thus the prehearing conference and hearing are to further hone the issues and to evaluate where the claim stands, if no proof is offered during the claimant’s initial discovery period, those opposing the claim cannot be expected to marshal their defenses; therefor the cancellation of the hearing conference and the denial of a hearing where claimant had not submitted any proof regarding his claim were not in contravention of statutes or regulations. Cornett v. Corbin Materials, Inc., 807 S.W.2d 56, 1991 Ky. LEXIS 31 ( Ky. 1991 ).

A “benefit review determination” is a written document which resolves “all matters at issue” with regard to a particular claim and, therefore, does not include an interlocutory award of temporary total disability benefits. Ki United States Corp. v. Hall, 3 S.W.3d 355, 1999 Ky. LEXIS 131 ( Ky. 1999 ).

When a case has been heard and concluded, the case is not pending for purposes of KRS 342.270(1). St. Joseph Hosp. v. Frye, 2012 Ky. App. LEXIS 204 (Ky. Ct. App. Oct. 5, 2012), aff'd, 415 S.W.3d 631, 2013 Ky. LEXIS 643 ( Ky. 2013 ).

3. Hearing.

Any interested party to an agreement which has been approved by the Board may make application under this section to have the case reopened and, upon a showing of change of condition, mistake, or fraud, the Board may end, diminish, or increase the compensation. Katterjohn v. Adams, 249 S.W.2d 952, 1952 Ky. LEXIS 890 ( Ky. 1952 ).

A letter of inquiry is not the equivalent of filing a claim on the appropriate form. Morgan v. Kays Laundry & Cleaning, Inc., 332 S.W.2d 248, 1959 Ky. LEXIS 13 ( Ky. 1959 ).

Where claimant filed an application for compensation alleging on the first page that the date of her injury was February 17, 1965, and in Part III of the application alleging that in January 1966 she reinjured the same wrist in a similar type accident, such application was sufficient to require a trial of claimant’s claim for original injuries as well as the injuries she received in the second accident. Equitable Bag Co. v. Hamblin, 478 S.W.2d 722, 1972 Ky. LEXIS 341 ( Ky. 1972 ).

Where, after settling a claim of an injured employee and obtaining Board approval of the settlement agreement, the employer filed an application for apportionment from the special fund, such application was improper as the amount of compensation to be received had already been determined by agreement. Yocom v. Jordan Auto Parts Co., 521 S.W.2d 519, 1975 Ky. LEXIS 159 ( Ky. 1975 ).

4. Evidence.

Compensation claimant was required to submit evidence during the initial proof period; provision of regulation allowing additional discovery or proof by deposition between the time of the prehearing conference and the hearing presupposes that the initial proof has been submitted. Cornett v. Corbin Materials, Inc., 807 S.W.2d 56, 1991 Ky. LEXIS 31 ( Ky. 1991 ).

Administrative Law Judge (ALJ) properly determined that a worker’s scheduling conflicts did not form a basis to extend his time for proof with regard to his disability claim as scheduling difficulties were not sufficient cause for an extension under the standards set forth in 803 KAR 25:010. Therefore, the decision of the Workers’ Compensation Board that reversed the denial of the worker’s motion to extend time was in error. Butler's Fleet Serv. v. Martin, 173 S.W.3d 628, 2005 Ky. App. LEXIS 203 (Ky. Ct. App. 2005).

5. Statute of Limitations.

For time limitation purposes, cause of action first accrues when parties fail to agree or when they disagree, and period for filing application with Board runs one year (now two years) from such time. Scott Tobacco Co. v. Cooper, 258 Ky. 795 , 81 S.W.2d 588, 1934 Ky. LEXIS 587 ( Ky. 1934 ).

The limitation period of one year (now two years) runs from the date of the parties’ disagreement. Sweeney v. Kentucky State Highway Dep't, 313 Ky. 503 , 232 S.W.2d 1018, 1950 Ky. LEXIS 921 ( Ky. 1950 ).

The provision as to time in this section is mandatory. Inland Gas Corp. v. Flint, 255 S.W.2d 1006, 1953 Ky. LEXIS 701 ( Ky. 1953 ). See Mary Gail Coal Co. v. Rhodes, 284 S.W.2d 97, 1955 Ky. LEXIS 20 ( Ky. 1955 ).

Where there was no showing that there had been a previous acknowledgment or agreement of liability followed by denial of liability, the statute of limitations began to run on date of employee’s death. Inland Gas Corp. v. Flint, 255 S.W.2d 1006, 1953 Ky. LEXIS 701 ( Ky. 1953 ).

Where the decedent died on October 8, 1950, and day on which one year expired was October 7, 1951, both dates being Sundays, and the application for compensation was filed October 8, 1951, the application was filed one day too late. Inland Gas Corp. v. Flint, 255 S.W.2d 1006, 1953 Ky. LEXIS 701 ( Ky. 1953 ) (decision prior to 1974 amendment).

Where application for compensation claim was sent by special delivery and registered mail and would have arrived on a Saturday before the statute ran out but for the Board’s policy of not working and not accepting registered and special delivery mail on Saturday, the Board should have marked the application as filed on the Saturday it would have been received. Mary Gail Coal Co. v. Rhodes, 284 S.W.2d 97, 1955 Ky. LEXIS 20 ( Ky. 1955 ).

In the absence of false representation or fraudulent concealment, the fact that insurance adjuster left claimant with impression he would be paid does not prevent operation of statutory bar where claim was not filed in time. Cambron v. Co-operative Distributing Co., 405 S.W.2d 687, 1966 Ky. LEXIS 263 ( Ky. 1966 ).

Testimony of examining physician that he had examined claimant some 16 months prior to filing of claim and found a left knee injury of about two weeks duration and that, upon reexamination three years later, he found the same condition, precluded board from having to believe claimant sustained injury within one-year period before claim was filed. Louisa Coca-Cola Bottling Co. v. Sturgill, 467 S.W.2d 584, 1971 Ky. LEXIS 385 ( Ky. 1971 ) (decision prior to 1974 amendment).

Where claims adjuster for insurance carrier made no false representation or fraudulent concealment, the claimant was not lulled into failing to file his claim within the time limit. Island Creek Coal Co. v. Lewis, 474 S.W.2d 361, 1971 Ky. LEXIS 103 ( Ky. 1971 ).

In cases where the injury is the result of many mini-traumas, the date for giving notice and the date for clocking a statute of limitations begins when the disabling reality of the injuries become manifest. Randall Company/Randall Div. of Textron, Inc. v. Pendland, 770 S.W.2d 687, 1989 Ky. App. LEXIS 62 (Ky. Ct. App. 1988).

Workers’ Compensation Board did not err in allowing an individual’s claim for permanent partial disability benefits to proceed on the merits where the individual’s application for benefits for a subsequent work-related back injury was not, and could not have been, filed during the pendency of a previous claim as the individual had never filed a Form 101 for the previous incident, thus, the previous claim never formally accrued as required by KRS 342.270(1). Westerfield v. Diversified Health Care, Inc., 2003 Ky. App. LEXIS 217 (Ky. Ct. App. Aug. 29, 2003), aff'd, 2004 Ky. Unpub. LEXIS 180 (Ky. Dec. 16, 2004).

Employee, who suffered a work-related back injury and who claimed depression resulting from that injury, was not entitled to recover medical expenses related to the depression after the expiration of the two-year limitations period in KRS 342.270 , where the employee did not seek such benefits when she filed her workers’ compensation claim. Sayre Christian Vill. Nursing Home v. Ramsey, 2006 Ky. App. LEXIS 392 (Ky. Ct. App. Dec. 22, 2006), aff'd, 239 S.W.3d 56, 2007 Ky. LEXIS 239 ( Ky. 2007 ).

When a workers’ compensation claimant sustained an injury that resulted in impairment as of a certain date and continued to be exposed to workplace hazardous noise when he filed his claim, disability resulting from the impairment that was inadequate to be compensable as of two years before he filed his claim did not need to be excluded under KRS 342.185 and 342.270 when calculating the award. KRS 342.7305(2) imposed an eight percent threshold for awarding income benefits, and no medical evidence indicated that the claimant’s injury warranted treatment eight years earlier. Quebecor Book Co. v. Mikletich, 322 S.W.3d 38, 2010 Ky. LEXIS 245 ( Ky. 2010 ).

6. — Tolling.

Application to Board for compensation three years after injury was not barred by limitations since, throughout such period, employee was constantly lulled into belief her claim was being considered and would eventually be adjusted by employer, and limitations period only begins to run when employer denies liability or indulges in unreasonable procrastination. Starks Realty Co. v. French, 267 Ky. 255 , 101 S.W.2d 946, 1937 Ky. LEXIS 304 ( Ky. 1937 ).

Where the employee sustained an injury on November 11, 1948, but did not file his claim with the Workers’ Compensation Board until March 9, 1953, and during the time from date of injury to March 24, 1952, the employee was treated by various physicians of his own choice who incorrectly diagnosed the appellant’s condition, the statute of limitations was not tolled and the claim was barred. Goode v. Fleischmann Distilling Corp., 275 S.W.2d 903, 1955 Ky. LEXIS 387 ( Ky. 1955 ).

Where the claimant testified that the insurance adjuster, by his assurances that the claim would be paid after the medical reports were complete, lulled the claimant into not filing a claim, but there was evidence that the claimant did not see a doctor to obtain a medical report until after the statute of limitations had run, the Board was justified in finding that the statute of limitations had not been tolled. Parrish v. Briel Industries, Inc., 445 S.W.2d 119, 1969 Ky. LEXIS 141 ( Ky. 1969 ).

7. — — Voluntary Payments.

This section contemplates that the limitation period is suspended during the period when the employer is making voluntary payments, in acknowledgment of liability, which are designated as compensation in other parts of the law. Pipes Chevrolet Co. v. Bryant, 274 S.W.2d 663, 1954 Ky. LEXIS 1238 ( Ky. 1954 ).

The term “payments” in this section means “payments of compensation.” Miles v. General Electric Co., 280 S.W.2d 529, 1955 Ky. LEXIS 178 ( Ky. 1955 ).

Payment of part of a hospital bill by the employer will not toll this section. Miles v. General Electric Co., 280 S.W.2d 529, 1955 Ky. LEXIS 178 ( Ky. 1955 ).

The term “payments” in this section means payments of compensation and payments for medical and hospital expenses do not constitute voluntary payments which toll the statute of limitations. Buchanan v. Buchanan Coal Co., 310 S.W.2d 534, 1958 Ky. LEXIS 394 ( Ky. 1958 ).

After voluntary payments have ceased, the claimant must present his problem to the board within a year (now two years) from the date of the last payment. Morgan v. Kays Laundry & Cleaning, Inc., 332 S.W.2d 248, 1959 Ky. LEXIS 13 ( Ky. 1959 ).

Where employee’s salary payments were regarded as compensation and they, as well as payments of medical expenses, continued throughout the limitation period and long after, the limitation statute was tolled. Louisville Safety Council, Inc. v. Hack, 414 S.W.2d 877, 1966 Ky. LEXIS 15 ( Ky. 1966 ).

Where employee was paid his usual wages after injury under an employment contract which required employer to pay difference between wages and workers’ compensation benefits, the wages were voluntary payments and so tolled the limitation period. Kentucky West Virginia Gas Co. v. Spurlock, 415 S.W.2d 849, 1967 Ky. LEXIS 341 ( Ky. 1967 ).

A payment of medical expense by the employer to the claimant was not such a voluntary payment as would toll the statute of limitations for filing a compensation claim. Parrish v. Briel Industries, Inc., 445 S.W.2d 119, 1969 Ky. LEXIS 141 ( Ky. 1969 ).

Where the employee’s claim for compensation was filed more than a year after the cessation of voluntary payments of compensation, it was untimely and barred by the provisions of the section despite the fact that his employer provided medical services for him within one year before the filing of his claim. Franklin v. Blue Grass Cooperage Co., 447 S.W.2d 621, 1969 Ky. LEXIS 94 ( Ky. 1969 ) (decision prior to 1974 amendment).

As used in this section, “payment” is the receipt by the worker of an instrument of payment, and payment will be deemed to have ceased as of the day the last instrument of payment was received. Sturgill Lumber Co. v. Maynard, 447 S.W.2d 638, 1969 Ky. LEXIS 100 ( Ky. 1969 ).

Where the last voluntary payment to an injured worker covered the period from July 30 to August 31, 1965, but was issued on September 10, 1965, an application for compensation filed on September 9, 1966, was timely. Sturgill Lumber Co. v. Maynard, 447 S.W.2d 638, 1969 Ky. LEXIS 100 ( Ky. 1969 ) (decision prior to 1974 amendment).

Where the attorney for the insurance carrier caused payments to be made in January and February of 1971 upon the mistaken impression that they were for an injury sustained on December 30, 1970, such payments did not constitute a waiver of the right to plead limitations and did not subject the employer to liability for injuries actually sustained on November 7, 1969. Harris Bros. Constr. Co. v. Crider, 497 S.W.2d 731, 1973 Ky. LEXIS 372 ( Ky. 1973 ).

The question under former subsection (5) of this section should not be the precise amount of time that has elapsed since the injury, but rather whether the employee has achieved maximum recuperation and if the employee will not recover further from the effects of the injury, there probably can be no legitimate reason for holding the claim in abeyance. Chapman v. Payne & Hager, Inc., 565 S.W.2d 167, 1978 Ky. App. LEXIS 508 (Ky. Ct. App. 1978).

The word “shall” in former subsection (5) of this section was mandatory. Chapman v. Payne & Hager, Inc., 565 S.W.2d 167, 1978 Ky. App. LEXIS 508 (Ky. Ct. App. 1978).

There is nothing in former subsection (5) of this section which prohibits taking the testimony of a witness about to leave the state. Chapman v. Payne & Hager, Inc., 565 S.W.2d 167, 1978 Ky. App. LEXIS 508 (Ky. Ct. App. 1978).

Where, in response to a motion to hold in abeyance, the claimant stated that his attorney would be denied immediate payment of fee, that expenses had been incurred for physician’s disposition fees, travel expenses and court reporter fees, that the compensation checks were two to three weeks late on a few occasions and that the treating physicians at the University of Kentucky Medical Center tended to be transient so that their testimony might be lost if the case were held in abeyance, these facts, if true, would not constitute such prejudice to the employee as to avoid the mandatory application of former subsection (5) of this section. Chapman v. Payne & Hager, Inc., 565 S.W.2d 167, 1978 Ky. App. LEXIS 508 (Ky. Ct. App. 1978).

Where the claimant had received voluntary payments of the maximum benefits which would be payable under the compensation act, in the absence of a showing of prejudice to the employee’s claim, the Board had no discretion in the matter, and was required to hold the claim in abeyance. Chapman v. Payne & Hager, Inc., 565 S.W.2d 167, 1978 Ky. App. LEXIS 508 (Ky. Ct. App. 1978).

8. — Estoppel.

Where the insurance adjuster admittedly represented to the claimant’s attorney that the statute of limitations would not be pleaded or relied upon as a specific topic of conversation in continuing negotiations of possible settlement, the insurance carrier was estopped from asserting the statute as a defense. Carroll County Memorial Hospital v. Yocum, 489 S.W.2d 246, 1972 Ky. LEXIS 26 ( Ky. 1972 ).

Employer was estopped from asserting a limitations defense under KRS 342.270(1) due to its adjuster’s violation of 803 KAR 25:240, § 5 by failing to advise a workers’ compensation claimant how the adjuster would rule on the claimant’s application, that the adjuster needed additional information, and of specific reasons in writing for denying benefits. Hitachi Auto. Prods. USA, Inc. v. Craig, 279 S.W.3d 123, 2008 Ky. LEXIS 238 ( Ky. 2008 ).

9. Apportionment of Award.

Where the claimant was still receiving treatment for an earlier injury at the time he suffered a second injury, a board finding of 100 percent permanent disability was erroneous where it failed to determine what percentage of the disability was attributable to the first injury and apportion the award between the special fund and the employer accordingly. Peabody Coal Co. v. Simpson, 523 S.W.2d 223, 1975 Ky. LEXIS 114 ( Ky. 1975 ).

Where the medical evidence showed that the claimant’s back injuries continued from the prior injury to the subsequent injury and the claimant had an active preexisting, disabling condition, neither the special fund nor employers were liable for the percentage of resulting disability attributable to prior injury. Peabody Coal Co. v. Simpson, 523 S.W.2d 223, 1975 Ky. LEXIS 114 ( Ky. 1975 ).

10. Dismissal of Claim.

Where claimant’s motion for extension of time to submit proof regarding application for adjustment of claim in addition to having been filed five days after the proof time elapsed did not meet the prerequisites required by regulation to be set forth in such motion, administrative law judge’s denial of motion was proper and she did not abuse her discretion in dismissing the claim. Cornett v. Corbin Materials, Inc., 807 S.W.2d 56, 1991 Ky. LEXIS 31 ( Ky. 1991 ).

Where upon application for adjustment of compensation claim no discovery was taken by the claimant within 60 days of order setting a prehearing conference and the motion for extension of time was not made within five days of the deadline sought to be extended as required by regulations, the administrative law judge did not abuse her discretion in dismissing the claim. Cornett v. Corbin Materials, Inc., 807 S.W.2d 56, 1991 Ky. LEXIS 31 ( Ky. 1991 ).

Dismissal of a worker’s post-award claim for medical benefits for depression was proper because KRS 342.185 and KRS 342.270(1) required a claim to be filed within two years of the date of the accident and required all known causes of action to be joined or waived, and although the worker knew of her depression condition during the initial proceeding, she failed to raise it in her workers’ compensation claim. Ramsey v. Sayre Christian Vill. Nursing Home, 239 S.W.3d 56, 2007 Ky. LEXIS 239 ( Ky. 2007 ).

11. Stipulation.

Where plaintiff (1) adduced evidence on the issue forming the basis of the stipulation; (2) listed work-relatedness as an issue in his brief; and (3) did not mention the stipulation in his petition for reconsideration, he could not complain that the administrative law judge failed to enforce the stipulation on administrative appeal. Osborne v. Pepsi-Cola, 816 S.W.2d 643, 1991 Ky. LEXIS 144 ( Ky. 1991 ).

12. Believability of Witness.

Administrative law judge’s comments at prehearing conference that he had serious doubts about a witness’ testimony or that he was, at that point, unpersuaded by a witness’ evidence would not be assumed to indicate improper bias against that witness such as would have required giving claimant an opportunity to obtain other proof in the absence of evidence that the ALJ improperly considered matters outside the record in determining which witness or witnesses he chose to believe. Past Coal Co. v. Bishop, 871 S.W.2d 432, 1994 Ky. LEXIS 20 ( Ky. 1994 ).

13. Joinder of Accrued Claims.

Where an employee filed a workers’ compensation claim for a knee injury without joining a claim for an accrued back injury, the back injury claim, which was filed later, was barred pursuant to KRS 342.270(1), and the employer was not estopped from raising the joinder statute as a defense despite a letter from the employer’s insurance carrier to the employee’s attorney suggesting settlement of the knee injury claim before concentrating on the back injury claim, as the letter pre-dated the filing of either claim, did not suggest that the employee disregard KRS 342.270(1), and involved no false statements or concealment of facts, and because the employee, through counsel, had knowledge of the plain requirements of KRS 342.270(1). Ridge v. VMV Enters., 2002 Ky. App. LEXIS 1918 (Ky. Ct. App. Sept. 6, 2002).

Once a worker filed a claim for an injury, the worker had to join a second claim before the first was settled; it was immaterial that the injuries arose at different times, involved separate claims, and were treated by the parties as separate matters. Ridge v. VMV Enters., 114 S.W.3d 845, 2003 Ky. LEXIS 205 ( Ky. 2003 ).

Workers’ Compensation Board erred in reversing a finding that an employee’s injury claim was joined by implication as part of a subsequent injury claim since: her case was practiced and briefed as if an injury occurred on the subsequent injury date; CR 15.02 had been held to be applicable to workers’ compensation proceedings; and Rule 15.02 and KRS 342.270(1) were not in conflict with one another and could be construed in a way to give effect to both provisions. Hodge v. Ford Motor Co., 124 S.W.3d 460, 2003 Ky. App. LEXIS 324 (Ky. Ct. App. 2003).

Injury that was the basis for an employee’s second workers’ compensation claim occurred after her first case had been heard and concluded. Thus, although no decision had yet been made, the first claim was no longer pending, and KRS 342.270(1) did not require the employee to join her first claim with her second claim. St. Joseph Hosp. v. Frye, 2012 Ky. App. LEXIS 204 (Ky. Ct. App. Oct. 5, 2012), aff'd, 415 S.W.3d 631, 2013 Ky. LEXIS 643 ( Ky. 2013 ).

Administrative law judge (ALJ) erred by dismissing an employee’s second injury claim because her first claim was no longer pending after the final hearing, her second accident occurred after the final hearing on the first claim, the workers’ compensation practice regulations did not provide a mechanism for reopening proof in a claim after a hearing had taken place, and if the employee had filed her second claim before the ALJ entered his opinion, she would have been able to present any proof. St. Joseph Hosp. v. Frye, 415 S.W.3d 631, 2013 Ky. LEXIS 643 ( Ky. 2013 ).

Cited:

Laswell v. Carrollton Furniture Mfg. Co., 251 S.W.2d 296, 1952 Ky. LEXIS 911 ( Ky. 1952 ); Jefferson Dev. Co. v. Olinick, 272 S.W.2d 676, 1954 Ky. LEXIS 1127 ( Ky. 1954 ); Patrick v. Highbaugh, 347 S.W.2d 88, 1961 Ky. LEXIS 351 ( Ky. 1961 ); Proctor & Gamble Mfg. Co. v. Little, 357 S.W.2d 866, 1962 Ky. LEXIS 153 ( Ky. 1962 ); McLeod Distributing Co. v. Campbell, 593 S.W.2d 102, 1979 Ky. App. LEXIS 504 (Ky. Ct. App. 1979); Jones v. Newberg, 890 S.W.2d 284, 1994 Ky. LEXIS 149 ( Ky. 1994 ); Howard v. Peabody Coal Co., 185 S.W.3d 165, 2006 Ky. LEXIS 48 ( Ky. 2006 ).

Opinions of Attorney General.

A hearing officer is a state officer in contemplation of the Constitution. OAG 68-56 .

A hearing or examining officer for the Workers’ Compensation Board is a state officer in contemplation of the Constitution. OAG 69-364 .

Research References and Practice Aids

Kentucky Bench & Bar.

Schabell, Case Development for the Plaintiff in Workers’ Compensation Cases, Vol. 50, No. 2, Spring 1986 Ky. Bench & B. 20.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

Kentucky Law Journal.

Kentucky Law Survey, Basil, Workers’ Compensation, 69 Ky. L.J. 687 (1980-81).

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

342.275. Benefit review by administrative law judge — Determination — Procedures — Deadline.

  1. The commissioner shall promptly issue notice of the assignment of the claim to an administrative law judge, time for presentation of proof and of the time and place of a benefit review conference. The administrative law judge may confer informally with the parties for the purpose of defining and narrowing the issues, discussing settlement, and considering other relevant matters that may aid in the disposition of the case.
  2. The administrative law judge may grant continuances or grant or deny any benefits afforded under this chapter, including interlocutory relief, according to criteria established in administrative regulations promulgated by the commissioner. The administrative law judge shall render the award, order, or decision within sixty (60) days following the final hearing unless extension is mutually agreed to by all parties. The award, order, or decision, together with a statement of the findings of fact, rulings of law, and any other matters pertinent to the question at issue shall be filed with the record of proceedings, and a copy of the award, order, or decision shall immediately be sent to the parties in dispute.

History. 4933: amend. Acts 1964, ch. 192, § 20; 1970, ch. 16, § 2; 1980, ch. 188, § 112, effective July 15, 1980; 1987 (Ex. Sess.), ch. 1, § 32, effective January 4, 1988; 1994, ch. 181, Part 3, § 15, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 13, effective December 12, 1996; 2000, ch. 514, § 18, effective July 14, 2000; 2010, ch. 24, § 1811, effective July 15, 2010.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Construction.
  3. Hearing.
  4. — Evidence.
  5. — — Expert Opinion.
  6. — — — Medical Testimony.
  7. — — Time of Taking.
  8. — — Sufficiency.
  9. — Burden of Proof.
  10. Award, Order or Decision.
  11. — Time.
  12. — Finality.
  13. —Findings.
  14. — — Fact and Law.
  15. — — — Remand.
  16. — Order of Referee.
  17. — Copy to Parties.
  18. Record of Proceedings.
  19. Appeal.
  20. Dismissal.
1. Constitutionality.

Compensation law was not faulty or unconstitutional in not allowing jury trial, since persons who accept such law agree to trial without jury. Greene v. Caldwell, 170 Ky. 571 , 186 S.W. 648, 1916 Ky. LEXIS 126 ( Ky. 1916 ).

2. Construction.

Since “shall” as used in KRS 342.270 and this section and 803 KAR 25.011 § 5(5) and § 10(1) was not meant to decree that, in all cases, a hearing shall be held regardless of the circumstances, and the holding of a conference and hearing contemplates that the process of discovery, proof-taking, and the delineation of issues will have already begun and thus the prehearing conference and hearing are to further hone the issues and to evaluate where the claim stands, if no proof is offered during the claimant’s initial discovery period, those opposing the claim cannot be expected to marshal their defenses; therefor the cancellation of the hearing conference and the denial of a hearing where claimant had not submitted any proof regarding his claim were not in contravention of statutes or regulations. Cornett v. Corbin Materials, Inc., 807 S.W.2d 56, 1991 Ky. LEXIS 31 ( Ky. 1991 ).

3. Hearing.

A hearing and decision by the full Board is contemplated if desired by one of the parties. Walker v. Lebanon Stone Co., 312 Ky. 624 , 229 S.W.2d 163, 1950 Ky. LEXIS 717 ( Ky. 1950 ).

Workers’ compensation benefits are paid on occupational disability, not functional disability, and it is the responsibility of the Board to translate the percentage of functional disability into the percentage of occupational disability. Pruitt v. Bugg Bros., 547 S.W.2d 123, 1977 Ky. LEXIS 393 ( Ky. 1977 ).

4. — Evidence.

Spirit if not letter of law permits quite a degree of liberality on part of compensation board in investigating and accepting evidence. Standard Acci. Ins. Co. v. Hinson, 251 Ky. 287 , 64 S.W.2d 574, 1933 Ky. LEXIS 836 ( Ky. 1933 ).

A proceeding hereunder is a civil case, and rule of evidence applied in civil cases is rule to be followed. Black Star Coal Co. v. Hall, 257 Ky. 481 , 78 S.W.2d 343, 1935 Ky. LEXIS 44 ( Ky. 1935 ).

Where wife was acting as agent of her husband, she was competent witness as to any matter connected with agency, including compensation payments. Himyar Coal Corp. v. Gordon, 260 Ky. 709 , 86 S.W.2d 702, 1935 Ky. LEXIS 553 ( Ky. 1935 ).

The Workers’ Compensation Board may compel the taking of evidence before it within reasonable limits of time. This power will not be controlled by the courts unless the tribunal acts in an arbitrary or unreasonable manner such as to indicate an abuse of discretion. Searcy v. Three Point Coal Co., 280 Ky. 683 , 134 S.W.2d 228, 1939 Ky. LEXIS 188 ( Ky. 1939 ).

Where the Board has arbitrarily refused to permit evidence to be introduced, the court may set aside the award and remand the case to enable a party to produce his evidence but may not adopt this procedure when every opportunity has been afforded by the Board for proof to be taken and when the Board has exercised a reasonable discretion in denying an extension of time for taking proof. Searcy v. Three Point Coal Co., 280 Ky. 683 , 134 S.W.2d 228, 1939 Ky. LEXIS 188 ( Ky. 1939 ).

The Board, in making its finding, may act only on the evidence introduced in the case. Taylor v. Cornett Lewis Coal Co., 281 Ky. 366 , 136 S.W.2d 21, 1940 Ky. LEXIS 36 ( Ky. 1940 ).

More liberality is allowed in compensation cases in the introduction of evidence than is usually permissible in other cases. American Rolling Mill Co. v. Stevens, 290 Ky. 16 , 160 S.W.2d 355, 1941 Ky. LEXIS 4 ( Ky. 1941 ).

Where the claimant was working at the time the proof was taken before the Workers’ Compensation Board but his employment was terminated prior to the filing of his briefs with the Board, it was improper under this section for the Board to accept the fact that claimant’s employment was terminated, since that fact did not appear in the record. Young v. Marsillett, 473 S.W.2d 128, 1971 Ky. LEXIS 147 ( Ky. 1971 ).

The fact that an injured employee returned to work and subsequently obtained a higher job classification at an increase in pay may be considered by the Board in determining the extent of the admitted permanent partial occupational disability as it is entitled to consider age and future employment opportunities of the employee in the general labor market. Eastern Coal Corp. v. Butcher, 476 S.W.2d 832, 1972 Ky. LEXIS 396 ( Ky. 1972 ).

Court erred where it reversed award of total disability for lack of substantial evidence and remanded to consider only medical evidence because the Board may consider lay testimony as to the extent of disability after it forms a conclusion as to whether the bodily injury exists based on medical testimony. Walker v. Porter Product Finishers, Div. of Porter Paint Co., 505 S.W.2d 178, 1974 Ky. LEXIS 770 ( Ky. 1974 ).

Compensation claimant was required to submit evidence during the initial proof period; provision of regulation allowing additional discovery or proof by deposition between the time of the prehearing conference and the hearing presupposes that the initial proof has been submitted. Cornett v. Corbin Materials, Inc., 807 S.W.2d 56, 1991 Ky. LEXIS 31 ( Ky. 1991 ).

5. — — Expert Opinion.

Opinion or expert evidence is neither conclusive nor controlling as against evidence of facts. Consolidation Coal Co. v. Marcum's Adm'r, 289 Ky. 220 , 158 S.W.2d 150, 1941 Ky. LEXIS 28 ( Ky. 1941 ).

Where circumstances are shown which, if true, would tend to cast some doubt as to correctness of opinion of experts, the issue resolves into one of fact to be determined by Board. Consolidation Coal Co. v. Marcum's Adm'r, 289 Ky. 220 , 158 S.W.2d 150, 1941 Ky. LEXIS 28 ( Ky. 1941 ).

6. — — — Medical Testimony.

In workers’ compensation case, physicians who attended an autopsy on deceased employee could give, as testimony, their opinions as to the cause of his death even if the inquest was illegally held. Streipe v. Hubbuch Bros. & Wellendorf, 233 Ky. 194 , 25 S.W.2d 358, 1930 Ky. LEXIS 522 ( Ky. 1930 ).

Where employer introduced testimony of several doctors in an attempt to prove that employee’s disability was not solely result of his injury, evidence of employee’s doctors tending to counteract legal effect of employer’s medical testimony was necessarily rebuttal and was properly introduced as such. Ajax Coal Co. v. Collins, 269 Ky. 222 , 106 S.W.2d 617, 1937 Ky. LEXIS 567 ( Ky. 1937 ).

Where the uncontradicted sequence of events casts doubt upon the correctness of the diagnosis of physicians, the evidence revolves itself into an issue of fact to be determined by the board. Ellis v. Litteral, 296 Ky. 287 , 176 S.W.2d 883, 1943 Ky. LEXIS 151 ( Ky. 1943 ).

The compensation board had right to consider and weigh testimony of doctor, notwithstanding that doctor was an aged man and that he had been visited by employee for sole purpose of obtaining him as a favorable witness. Three Point Coal Co. v. Moser, 298 Ky. 868 , 184 S.W.2d 242, 1944 Ky. LEXIS 1027 ( Ky. 1944 ).

Where a doctor testified in terms of possibilities concerning what could happen to persons having some diseased or degenerative process taking place in their backs who subsequently sustain a back injury, such testimony did not adversely affect the probative value of his unequivocal opinion that the claimant’s disability resulted solely from his employment injury. Young v. Mill Branch Mining Co., 435 S.W.2d 453, 1968 Ky. LEXIS 207 ( Ky. 1968 ).

Where medical testimony is conflicting, the question of who to believe is one exclusively for the Board. Pruitt v. Bugg Bros., 547 S.W.2d 123, 1977 Ky. LEXIS 393 ( Ky. 1977 ).

When a medical opinion is based solely upon history, the trier of fact is not constricted to a myopic view focusing only on the physicians’ testimony and other testimony bearing on the accuracy of the history may be considered, therefore, if the history is sufficiently impeached, the trier of fact may disregard the opinions based on it. Osborne v. Pepsi-Cola, 816 S.W.2d 643, 1991 Ky. LEXIS 144 ( Ky. 1991 ).

7. — — Time of Taking.

Refusal to extend time for employer to take proof was not arbitrary or an abuse of discretion where employer had delayed the taking of proof for three months and gave no explanation for other delays except that his attorney had been ill, without stating when the illness began or how long it lasted, or proving any other casualty or misfortune. Searcy v. Three Point Coal Co., 280 Ky. 683 , 134 S.W.2d 228, 1939 Ky. LEXIS 188 ( Ky. 1939 ).

Where the record disclosed that depositions were taken on behalf of claimant on March 28, 1949, but were not filed with the Workers’ Compensation Board until April 10, 1950, the Board’s action in striking from the record and refusing to consider the depositions was not unreasonable or arbitrary and the claimant and employer could not, by stipulation, rescind the Board’s order closing the claimant’s case because of his failure to move for extension of time. Shackelford v. Shackelford, 254 S.W.2d 503, 1953 Ky. LEXIS 598 ( Ky. 1953 ).

8. — — Sufficiency.

The Workers’ Compensation Board is vested with broad discretionary powers, including the power to judge the preponderance of evidence on issues of fact. Leckie Collieries Co. v. Branham, 275 Ky. 748 , 122 S.W.2d 776, 1938 Ky. LEXIS 503 ( Ky. 1938 ).

Where medical testimony indicated that claimant’s eye injury was possibly caused by a blow to the eye but not by a piece of hot glass which struck his eye, and the claimant himself testified that he did not receive a blow, the mere possibility of the causal relationship was insufficient to support an award. Marcum v. General Electric Co., 479 S.W.2d 640, 1972 Ky. LEXIS 316 ( Ky. 1972 ).

Where a 63-year-old illiterate who had never done anything but hard labor was injured, and all the medical evidence substantiated that he was no longer capable of heavy work, board’s finding that he was permanently partially disabled and not totally disabled would not be disturbed. Pruitt v. Bugg Bros., 547 S.W.2d 123, 1977 Ky. LEXIS 393 ( Ky. 1977 ).

Evidence showing that a claimant had a high school education and no training in any occupation but manual labor and that an injury prevented her from using her right arm was sufficient to support a finding of total disability. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 1977 Ky. LEXIS 565 ( Ky. 1977 ).

Where the evidence showed that a 32-year-old claimant, who had an eighth grade education and no training except at manual labor, suffered a back injury resulting in a herniated disc, a finding of 100 percent occupational disability was warranted. Tackett v. Sizemore Mining Co., 560 S.W.2d 17, 1977 Ky. LEXIS 566 ( Ky. 1977 ).

Where two doctors testified that a back injury suffered by a claimant while doing light work merely aggravated a previous injury suffered by the claimant while working for a different employer, the Board’s finding that the second injury aggravated the first and did not result in liability for the second employer was supported by the evidence. Calloway County Fiscal Court v. Winchester, 557 S.W.2d 216, 1977 Ky. App. LEXIS 829 (Ky. Ct. App. 1977).

Where the evidence showed that claimant had been active and well prior to his accident in which he fractured his hip, that his hip was surgically pinned, that his treating physician saw him two and four months later, and expected full recovery, but had not seen his patient for almost two years and admitted his inability to give an up-to-date evaluation, but assessed a 10 percent temporary functional disability to the lower extremity and 5 percent to the body as a whole; that claimant later sought treatment of a second physician for treatment of headaches and forgetfulness, that claimant testified as to pain radiating from his neck down his right side to his hip, that he had only been able to work a short time as a janitor before pain forced him to quit; and that testimony from both him and his aunt, with whom he lived, showed that since the accident he could no longer help around the house or participate in sports without pain, there was substantial medical testimony from which the Board could have concluded claimant suffered a trauma from his accident and substantial lay evidence from which the Board could determine the extent of occupational disability; therefore the findings of the board awarding 20 percent occupational disability for so long as the disability continued was not erroneous. Hush v. Abrams, 584 S.W.2d 48, 1979 Ky. LEXIS 268 ( Ky. 1979 ).

Where plaintiff said nothing to his supervisor about being injured on the day the injury supposedly occurred but, rather claimed sickness as his reason for leaving work; when he first reported for treatment, specifically stated there was no known injury; later called his employer on two occasions, but voiced no complaint of injury at work; and presented an extensive history of back problems, the trier of fact questioned his credibility and under the circumstances it could not be said the evidence was so overwhelming to compel a finding in plaintiff’s favor. Osborne v. Pepsi-Cola, 816 S.W.2d 643, 1991 Ky. LEXIS 144 ( Ky. 1991 ).

9. — Burden of Proof.

Burden of proving facts necessary to establish his claim is on claimant. Cairel v. Hall-Luton Coal Co., 243 Ky. 168 , 47 S.W.2d 1063, 1932 Ky. LEXIS 74 ( Ky. 1932 ). See Black Star Coal Co. v. Hall, 257 Ky. 481 , 78 S.W.2d 343, 1935 Ky. LEXIS 44 ( Ky. 1935 ); Taylor v. Cornett Lewis Coal Co., 281 Ky. 366 , 136 S.W.2d 21, 1940 Ky. LEXIS 36 ( Ky. 1940 ); Howard v. Dawkins Log & Mill Co., 284 Ky. 9 , 143 S.W.2d 741, 1940 Ky. LEXIS 432 ( Ky. 1940 ).

The burden of proof is on the claimant to show that his disability was the result of the injury received by him, but he does not have to sustain his case by the weight of the evidence; the burden is met where he establishes that his disability was caused by the injury. American Rolling Mill Co. v. Stevens, 290 Ky. 16 , 160 S.W.2d 355, 1941 Ky. LEXIS 4 ( Ky. 1941 ).

The claimant has the burden of proof and the risk of nonpersuasion on the issue of the extent of disability. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 1977 Ky. LEXIS 565 ( Ky. 1977 ); Tackett v. Sizemore Mining Co., 560 S.W.2d 17, 1977 Ky. LEXIS 566 ( Ky. 1977 ).

The claimant in a workers’ compensation proceeding has the burden of proof. Kentland Elkhorn Coal Co. v. Johnson, 549 S.W.2d 308, 1977 Ky. App. LEXIS 659 (Ky. Ct. App. 1977).

10. Award, Order or Decision.

Since compensation award is in nature of judgment, right acquired under it cannot be destroyed by mere refusal to recognize it or by simply petitioning for review. Standard Acci. Ins. Co. v. Hinson, 251 Ky. 287 , 64 S.W.2d 574, 1933 Ky. LEXIS 836 ( Ky. 1933 ).

It was error to back-date an award to time of injury when the increased award was based upon a change in condition. Swift & Co. v. Blades, 502 S.W.2d 513, 1973 Ky. LEXIS 72 ( Ky. 1973 ).

11. — Time.

The failure of the administrative law judge to render a decision within the 90-day time frame prescribed in 803 KAR 25:011 § 10(6)(a) did not render that decision a nullity and Workers’ Compensation Board’s denial of request for a new hearing and decision within the required time limit was affirmed. Bentley v. Aero Energy, 903 S.W.2d 912, 1995 Ky. App. LEXIS 138 (Ky. Ct. App. 1995).

12. — Finality.

Full Board award becomes final immediately upon entry. Collinsworth v. Harvey Coal Corp., 288 Ky. 704 , 157 S.W.2d 294, 1941 Ky. LEXIS 188 ( Ky. 1941 ).

When medical evidence is in conflict, the decision of the Board is conclusive. Young v. Mill Branch Mining Co., 435 S.W.2d 453, 1968 Ky. LEXIS 207 ( Ky. 1968 ).

After an administrative law judge found claimant’s injuries to be work-related and entered an interlocutory order in accordance with KRS 342.275(2) directing her employer to pay all medical benefits, claimant failed to timely submit her Form 114 requests for reimbursement of medical expenses within 60 days of the date the expenses were incurred as required by 803 KAR 25:096, § 11; therefore, her expenses were non-compensable. The Supreme Court of Kentucky rejected claimant’s argument that her obligation to present reimbursement requests did not arise until a final award was entered, because the interlocutory order was enforceable. Garno v. Solectron USA, 329 S.W.3d 301, 2010 Ky. LEXIS 293 ( Ky. 2010 ).

13. —Findings.

The Board, in making its award, should include fact-finding whether preexisting disease caused or contributed to injury, and failure to do so requires reversal. Standard Elkhorn Coal Co. v. Royark, 243 Ky. 828 , 50 S.W.2d 33, 1932 Ky. LEXIS 206 ( Ky. 1932 ).

Board’s finding that employee’s disability was combined result of employee’s act in knocking top off of boil and subsequent act of squeezing it, but not stating whether employee’s disability was contributed to in any degree by any preexisting disease, was insufficient. Farmer Motor Co. v. Smith, 249 Ky. 445 , 60 S.W.2d 929, 1933 Ky. LEXIS 517 ( Ky. 1933 ).

Where Board makes no finding of fact and disability is traceable partly to preexisting disease and partly to accidental injury, board should ascertain facts and apportion award accordingly. Aden Mining Co. v. Hall, 252 Ky. 168 , 66 S.W.2d 41, 1933 Ky. LEXIS 996 ( Ky. 1933 ).

Where Board failed to find the amount of disability caused by the injury and the amount which resulted from a preexisting condition, it may have been remiss in not making specific affirmative findings of fact but, when it assessed the appellant with full liability, the finding that no preexisting condition existed was implicit in its determination. Brown v. Gregory, 398 S.W.2d 710, 1966 Ky. LEXIS 510 ( Ky. 1966 ).

Since the existence or nonexistence of disability is a key fact as concerns the requirement of giving notice, a specific finding was required of whether the claimant was disabled from silicosis at or about the time he was given the diagnosis that he had silicosis. Blue Diamond Coal Co. v. Stepp, 445 S.W.2d 866, 1969 Ky. LEXIS 187 ( Ky. 1969 ).

Where evidence reflected employee had worked for five weeks without difficulty and was performing some of her own housework, finding by Board of full disability was held unreasonable and invalid. Singer Co. v. Sarver, 491 S.W.2d 69, 1972 Ky. LEXIS 11 ( Ky. 1972 ).

If there is substantial evidence to support the Board’s findings, state Supreme Court is without authority to substitute its finding for that of the Board. Pruitt v. Bugg Bros., 547 S.W.2d 123, 1977 Ky. LEXIS 393 ( Ky. 1977 ).

The Workers’ Compensation Board is not exempted from requirement that administrative bodies clearly set out basic facts to support their ultimate conclusions. The statute and the case law require the Board to support its conclusions with facts drawn from the evidence in each case so that both sides may be dealt with fairly and be properly apprised of the basis for the decision. Shields v. Pittsburg & Midway Coal Mining Co., 634 S.W.2d 440, 1982 Ky. App. LEXIS 219 (Ky. Ct. App. 1982).

The board’s findings were inadequate where question whether claimant was suffering from pneumoconiosis was sharply disputed by the physicians who testified in the case, and inasmuch as a finding of the existence of pneumoconiosis requires some expertise, all parties should have had the benefit of knowing the factual basis for the board’s determination that claimant was entitled to disability benefits. Shields v. Pittsburg & Midway Coal Mining Co., 634 S.W.2d 440, 1982 Ky. App. LEXIS 219 (Ky. Ct. App. 1982).

Board’s finding to the effect that defendant had received due and timely notice of plaintiff’s claim for compensation was actually a conclusion of law and was not adequately supported by the evidence, where the question of due and timely notice was not stipulated by the parties to the action and no facts were set out by the board to support its conclusion of due and timely notice. The appellate court was left in the position of searching the record to determine the applicable dates, when this fact-finding function should properly have been performed by the board. Shields v. Pittsburg & Midway Coal Mining Co., 634 S.W.2d 440, 1982 Ky. App. LEXIS 219 (Ky. Ct. App. 1982).

Where the employer’s own expert testified that the claimant’s previous injury was merely a strain and that he was able to perform his regular work without medication after recovering from the injury, the Workers’ Compensation Board’s conclusion that the claimant did not suffer any occupational disability prior to the subject injury is supported by substantial evidence of probative value. Louisville Cooperage v. Knoppe, 695 S.W.2d 440, 1985 Ky. App. LEXIS 634 (Ky. Ct. App. 1985).

Failure of Workers’ Compensation Board to make an express finding as to a claimant’s eligibility during a 14-month period, where the board had determined claimant disabled before and after that period, did not imply that claimant was not entitled to benefits for the 14-month period. Wilder v. Great Atlantic & Pacific Tea Co., 788 S.W.2d 270, 1990 Ky. LEXIS 42 ( Ky. 1990 ).

Administrative law judge’s findings, based on claimant’s age, education, occupation, experience, transferable skills, and physical condition, although not greatly detailed, were adequate to support his conclusion that claimant had suffered no additional occupational disability. Mosely v. Ford Motor Co., 968 S.W.2d 675, 1998 Ky. App. LEXIS 39 (Ky. Ct. App. 1998).

Court of appeals erred in reversing an award of TTD benefits on the ground that an ALJ did not make the essential findings under KRS 342.275(2) because the ALJ determined that the employee had not reached maximum medical improvement from the work-related shoulder injury and that the employee had not reached a level of improvement to return to employment. Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 2012 Ky. LEXIS 122 ( Ky. 2012 ).

Under KRS 342.275(2) and 342.285 , the Workers’ Compensation Board (Board) did not err by concluding that the ALJ failed to make sufficient findings of fact adequately supported by the evidence; nor did it err in determining that adequate evidence did not properly support the ALJ’s rejection of the doctor’s opinion with respect to causation, and the Board did not err in remanding the employee’s claim for additional consideration. Meuth Concrete v. Kindle, 2012 Ky. App. LEXIS 299 (Ky. Ct. App. Dec. 21, 2012), aff'd, 2014 Ky. Unpub. LEXIS 36 (Ky. June 19, 2014).

In a workers’ compensation case relating to death benefits, an administrative law judge’s (ALJ) findings were sufficient to support an award where the ALJ relied on recorded statements in finding that an employee was murdered during a robbery. The ALJ did not have to reiterate in the opinion, in detail, the exact statements from which the opinion was formulated; the findings as to what took place on the day in question were not clearly erroneous and were not disturbed. JJ's Smoke Shop, Inc. v. Walker, 2013 Ky. App. LEXIS 22 (Ky. Ct. App. Feb. 1, 2013), rev'd, 2014 Ky. Unpub. LEXIS 40 (Ky. June 19, 2014).

14. — — Fact and Law.

It was unimportant that Board did not file separate findings of fact and rulings of law, since all facts were stipulated except extent and duration of injuries as to which there was no conflict in evidence and since it was apparent from award that only statutory allowances were made for injuries received in course of employment and arising out of it. Fordson Coal Co. v. Alsobrook, 233 Ky. 793 , 26 S.W.2d 1030, 1930 Ky. LEXIS 650 ( Ky. 1930 ).

Although it is the duty of the compensation board to make a separate finding of fact and ruling of law, a judgment approving the board’s order dismissing a compensation claim will not be reversed for failure to comply with this section where no valid claim for additional compensation exists. Cornett v. Fordson Coal Co., 236 Ky. 209 , 32 S.W.2d 984, 1930 Ky. LEXIS 715 ( Ky. 1930 ).

Order of Board simply dismissing application because claimant did not receive personal injury by accident while employed by and working for defendant which would entitle him to compensation did not comply with provisions of law requiring separation of findings of fact and law. Consolidation Coal Co. v. Fields, 243 Ky. 488 , 49 S.W.2d 330, 1932 Ky. LEXIS 151 ( Ky. 1932 ).

Where compensation board found and adjudged that employee’s stroke of paralysis or any disability therefrom was not result of his prior injury and stated that claim for additional compensation was thereby dismissed, such finding and statement were sufficient to comply with requirement that board make findings of fact and conclusions of law. Lewis v. Fordson Coal Co., 249 Ky. 258 , 60 S.W.2d 585, 1933 Ky. LEXIS 501 ( Ky. 1933 ).

Compensation award expressly stating that employee’s injury arose out of and in course of his employment with defendant and resulted in his death clearly showed that Board found his injury to be direct cause of death, notwithstanding it failed to disclose that pneumonia intervened and hastened death and thus fulfilled requirement of separate findings of fact and law. January-Wood Co. v. Bramel, 252 Ky. 258 , 67 S.W.2d 14, 1934 Ky. LEXIS 766 ( Ky. 1934 ).

A finding by the Workers’ Compensation Board that representations made to a claimant were in “the category of false representations” is a specific finding of fact under this section despite the use of the words “in the category of.” Cowden Mfg. Co. v. Fultz, 472 S.W.2d 679, 1971 Ky. LEXIS 207 ( Ky. 1971 ).

Where the Workers’ Compensation Board failed to make a specific finding of fact on the issue of “work-relatedness,” but merely stated that the claimant “received a work related injury to his right leg while working for defendant,” such statement by the Board was a conclusion of law and not a finding of fact and the case was remanded for findings of fact sufficient to determine whether the injury was work-related. McCracken County Health Spa v. Henson, 568 S.W.2d 240, 1977 Ky. App. LEXIS 920 (Ky. Ct. App. 1977).

15. — — — Remand.

Where there is a dispute in the facts or as to the natural inferences to be drawn from the proof and the award is not accompanied with a statement of the findings of facts, as required by the law, the case will be remanded back through the Circuit Court to the compensation board with directions to make the award in strict conformity with the law. Yeager v. Mengel Co., 242 Ky. 543 , 46 S.W.2d 1076, 1932 Ky. LEXIS 307 ( Ky. 1932 ).

Where applicable law depends on Board’s determination on disputed facts but no fact-findings are made, case will be remanded to Board for findings. Aden Mining Co. v. Hall, 252 Ky. 168 , 66 S.W.2d 41, 1933 Ky. LEXIS 996 ( Ky. 1933 ). See Stokes v. Black Hawk Coal Co.'s Receiver, 242 Ky. 849 , 47 S.W.2d 740, 1932 Ky. LEXIS 370 ( Ky. 1932 ).

Circuit Court erred in remanding case to Board for separation of findings of law and findings of fact, since finding of Board that employee did not die by reason of a traumatic injury received in the course of his employment rendered unnecessary any ruling of law. Inland Steel Co. v. Newsome, 281 Ky. 681 , 136 S.W.2d 1077, 1940 Ky. LEXIS 89 ( Ky. 1940 ).

Findings by referee and Board that employee’s death was due to diseased heart, which had no direct or indirect connection with employment, and that death resulted from acute dilation of heart, the result of disease and not of traumatic or accidental compensable injury, were sufficient to exclude the contributing effect, if any, of the labor which employee was doing at time of death, and hence judgment denying award need not be referred back to Board for express finding on that issue. Fannin v. American Rolling Mill Co., 284 Ky. 188 , 144 S.W.2d 228, 1940 Ky. LEXIS 471 ( Ky. 1940 ).

16. — Order of Referee.

Where, following filing of referee’s report holding that employee did not lose his life in accident arising out of or in the course of his employment, the case was not submitted to the full Board or any member thereof but the applicant for compensation filed suit in Circuit Court praying that the order of the Board be reversed and compensation be awarded, the Circuit Court had no jurisdiction and should have dismissed the complaint, and judgment reversing and remanding the case is void, for no award made by a referee has any effect until approved by a majority of the board and no appeal lies to the Court of Appeals from the award or order of a referee. Epling v. Ratliff, 364 S.W.2d 327, 1963 Ky. LEXIS 202 ( Ky. 1963 ).

17. — Copy to Parties.

Requirement that copy of compensation award shall be sent immediately to parties involved was indispensable and mandatory. Jones v. Davis, 246 Ky. 293 , 54 S.W.2d 681, 1932 Ky. LEXIS 734 ( Ky. 1932 ).

Where it was shown without dispute that no copy of award was in fact sent by Board to applicant or his counsel, Board omitted one of essential elements of “rendition” with respect to right to review by full board. Jones v. Davis, 246 Ky. 293 , 54 S.W.2d 681, 1932 Ky. LEXIS 734 ( Ky. 1932 ).

Mailing of order of Workers’ Compensation Board four days after it was entered was not so delayed as to violate requirement of immediate notice. Lockard v. Workmen's Compensation Board, 554 S.W.2d 396, 1977 Ky. App. LEXIS 760 (Ky. Ct. App. 1977).

18. Record of Proceedings.

This section did not require that the record of the proceedings appearing in the order book of the board be signed by the chairman. Carnahan Oil & Refining Co. v. Miller, 232 Ky. 78 , 22 S.W.2d 430, 1929 Ky. LEXIS 394 ( Ky. 1929 ).

19. Appeal.

In a compensation case, the sole function of courts, so far as questions of fact are concerned, is to determine whether or not the record contains any competent evidence of probative value upon which the findings of fact of the board may be supported and courts are not authorized to determine the weight to be given the evidence. H. H. Waegner & Co. v. Moock, 303 Ky. 222 , 197 S.W.2d 254, 1946 Ky. LEXIS 822 ( Ky. 1946 ).

The claimant in a workers’ compensation proceeding has the burden of proof and if the Board rules against the claimant, the question on appeal is whether the evidence was so overwhelming as to compel a finding in his favor. Kentland Elkhorn Coal Co. v. Johnson, 549 S.W.2d 308, 1977 Ky. App. LEXIS 659 (Ky. Ct. App. 1977).

The courts will not disturb the Board’s findings of fact. Johnson v. Gum Branch Coal Co., 549 S.W.2d 311, 1977 Ky. App. LEXIS 660 (Ky. Ct. App. 1977).

A notice of appeal clearly stating an intention to invoke the jurisdiction of the workers’ compensation board under KRS 342.285 could not be properly treated by the Department as a request for a hearing before the administrative law judge under this section. Appalachian Steel Constr., Inc. v. Honaker, 2000 Ky. App. LEXIS 58 (Ky. Ct. App. May 26, 2000).

20. Dismissal.

Where claimant’s motion for extension of time to submit proof regarding application for adjustment of claim in addition to having been filed five (5) days after the proof time elapsed did not meet the prerequisites required by regulation to be set forth in such motion, administrative law judge’s denial of motion was proper and she did not abuse her discretion in dismissing the claim. Cornett v. Corbin Materials, Inc., 807 S.W.2d 56, 1991 Ky. LEXIS 31 ( Ky. 1991 ).

Where upon application for adjustment of compensation claim, no discovery was taken by the claimant within 60 days of order setting a prehearing conference and the motion for extension of time was not made within five (5) days of the deadline sought to be extended as required by regulations, the administrative law judge did not abuse her discretion in dismissing the claim. Cornett v. Corbin Materials, Inc., 807 S.W.2d 56, 1991 Ky. LEXIS 31 ( Ky. 1991 ).

When an employee did not submit evidence supporting her claim within the required time, in part because her employer’s insurer refused to pay for required tests, and, in part, because her injury “flared up” during the course of testing, requiring new diagnostic tests, an administrative law judge’s order dismissing her claim because she did not timely submit the evidence or move for an extension of that time at least five (5) days before its conclusion, did not make sufficient findings considering the extenuating circumstances the employee presented, and may have been based on the erroneous belief that dismissal was mandatory; thus, the dismissal was vacated. Walker v. New Directions Hous. Auth., 2003 Ky. App. LEXIS 206 (Ky. Ct. App. Aug. 22, 2003), aff'd, 149 S.W.3d 354, 2004 Ky. LEXIS 273 ( Ky. 2004 ).

Cited:

Blue Diamond Coal Co. v. Sizemore, 254 Ky. 102 , 71 S.W.2d 11, 1934 Ky. LEXIS 40 ( Ky. 1934 ); Department of Hwys. v. McCoy, 301 Ky. 765 , 193 S.W.2d 410, 1946 Ky. LEXIS 570 (1946); Webb v. Montgomery Ward & Co., 303 Ky. 152 , 197 S.W.2d 90, 1946 Ky. LEXIS 809 ( Ky. 1946 ); Blue Diamond Coal Co. v. Hensley, 314 Ky. 85 , 234 S.W.2d 317, 1950 Ky. LEXIS 1033 ( Ky. 1950 ); Combs v. Gaffney, 282 S.W.2d 817, 1955 Ky. LEXIS 260 ( Ky. 1955 ); Wells v. General Elec. Co., 318 S.W.2d 865, 1958 Ky. LEXIS 153 ( Ky. 1958 ); Whitis v. O. P. Link Handle Co., 378 S.W.2d 612, 1964 Ky. LEXIS 189 ( Ky. 1964 ); Kendrick v. Fields, 384 S.W.2d 64, 1964 Ky. LEXIS 70 ( Ky. 1964 ); Blaw-Knox Co. v. Knapp, 392 S.W.2d 76, 1965 Ky. LEXIS 271 ( Ky. 1965 ); Big Sandy Community Action Program v. Chaffins, 502 S.W.2d 526, 1973 Ky. LEXIS 79 ( Ky. 1973 ); Karst Robbins Machine Shop, Inc. v. Caudill, 779 S.W.2d 207, 1989 Ky. LEXIS 101 ( Ky. 1989 ); Anderson v. Homeless and Housing COA, — S.W.3d —, 2002 Ky. App. LEXIS 2320 (Ky. Ct. App. 2002).

Research References and Practice Aids

Kentucky Bench & Bar.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

Kentucky Law Journal.

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

Northern Kentucky Law Review.

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

ALR

Handling, preparing, presenting, or trying workmen’s compensation claims or cases as practice of law. 2 A.L.R.3d 724.

Use of medical books or treatises as independent evidence. 17 A.L.R.3d 993.

Comment note on hearsay evidence proceedings before state administrative agencies. 36 A.L.R.3d 12.

Admissibility of evidence that injured plaintiff received benefits from a collateral source, on issue of malingering or motivation to extend period of disability. 47 A.L.R.3d 234.

342.276. Mediation program.

  1. The commissioner shall establish a program to provide an opportunity for mediation of disputes as to the entitlement to benefits under this chapter.
  2. The commissioner shall promulgate administrative regulations necessary to establish and implement the mediation program, which shall prescribe the qualifications and duties of mediators; a process for the designation of mediators; procedures for the conduct of mediation proceedings; and the issues which shall be subject to mediation.
  3. Recommendations by mediators are without administrative or judicial authority and are not binding on the parties unless the parties enter into a settlement agreement incorporating the recommendations. Administrative law judges may participate in the mediation process but shall not issue findings or orders as a result of the process unless agreed to by the parties.

History. Enact. Acts 1996, ch. 355, § 3, effective July 15, 1996; 2010, ch. 24, § 1812, effective July 15, 2010.

342.277. Alternative dispute resolution.

  1. In accordance with administrative regulations promulgated by the commissioner, a collective bargaining agreement between an employer and a recognized or certified exclusive bargaining representative that contains the following provisions may be recognized as valid and binding:
    1. An alternative dispute resolution system to supplement, modify, or replace the provisions of this chapter that relate to the resolution of disputes, and which may include but is not limited to mediation and arbitration, the results of which may be binding upon the parties;
    2. The use of an agreed list of providers of medical treatment, which may be the exclusive source of all medical and related treatment provided under this chapter;
    3. The use of a limited list of physicians to conduct independent medical examinations;
    4. A light duty, modified job, or return-to-work program;
    5. A vocational rehabilitation or retraining program; and
    6. A twenty-four (24) hour health care coverage plan for medical benefits.
  2. A system of arbitration may provide that the decision of the arbiter is subject to review by an administrative law judge.
  3. Notwithstanding the provisions in subsection (1) of this section, no agreement shall be recognized as valid and binding that diminishes the rights of any of the parties under this chapter. Also, no agreement shall be valid and binding unless it is agreed to by the employer’s insurance carrier.

History. Enact. Acts 1994, ch. 181, Part 4, § 16, effective April 4, 1994; 2010, ch. 24, § 1813, effective July 15, 2010.

NOTES TO DECISIONS

  1. Collective Bargaining Agreement.
  2. Agreement Valid.
  3. Enforcement.
1. Collective Bargaining Agreement.

Pursuant to KRS 342.277(3), the collective bargaining agreement was not permitted to diminish the workers’ compensation claimant’s rights under the former version of KRS 342.730(1)(c)Ford Motor Co. v. Forman, 142 S.W.3d 141, 2004 Ky. LEXIS 176 ( Ky. 2004 ).

2. Agreement Valid.

Alternative dispute resolution (ADR) agreement did not violate KRS 342.277(3) by diminishing a workers’ compensation claimant’s rights or by denying her procedural due process and the same rights to income benefits and notice as provided in KRS ch. 342, because the claimant was aware of the ADR program and had ample time to obtain advice from counsel as to her rights, and she was deemed to have consented to it and was properly charged with knowledge of its terms. Spears v. Carhartt, Inc., 215 S.W.3d 1, 2006 Ky. LEXIS 126 ( Ky. 2006 ).

3. Enforcement.

Arbitrator properly dismissed a worker’s claim for permanent income benefits on grounds that her request for arbitration – which, under the applicable alternative dispute resolution agreement, had to be filed within 30 days after the mediation concluded – was unreasonably late. Though a 14-month delay in requesting arbitration did not affect the employer’s ability to defend, permitting such a delay would have increased its interest costs on unpaid benefits. Spears v. Carhartt, Inc., 215 S.W.3d 1, 2006 Ky. LEXIS 126 ( Ky. 2006 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

342.280. Review by full board; cost of attendance of certain witnesses. [Repealed.]

Compiler’s Notes.

This section (4934: amend. Acts 1950, ch. 188, § 1) was repealed by Acts 1964, ch. 192, § 27.

342.281. Petition for reconsideration — Contents — Response — Decision.

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.

History. Enact. Acts 1964, ch. 192, § 21; 1987 (Ex. Sess.), ch. 1, § 33, effective January 4, 1988; 1994, ch. 181, Part 14, § 75, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 14, effective December 12, 1996; 2000, ch. 514, § 19, effective July 14, 2000.

NOTES TO DECISIONS

  1. Purpose.
  2. — 1994 Amendment.
  3. — 1996 Amendment.
  4. Construction.
  5. Petition.
  6. — Time of Application.
  7. Award.
  8. — Mistake or Error.
  9. Appeal.
  10. — Finality of Order.
  11. Petition Granted.
1. Purpose.

The purpose of the compensation law, providing for reconsideration by the board, is not confined to the correction of clerical errors in the award. Commonwealth Dep't of Mental Health v. Robertson, 447 S.W.2d 857, 1969 Ky. LEXIS 104 ( Ky. 1969 ), limited, Messamore v. Peabody Coal Co., 569 S.W.2d 693, 1978 Ky. App. LEXIS 565 (Ky. Ct. App. 1978), overruled, Whittaker v. Wright, 969 S.W.2d 209, 1998 Ky. LEXIS 80 ( Ky. 1998 ).

2. — 1994 Amendment.

The purpose of the Legislature in enacting the 1994 amendment to this section was to allow for an appeal on any issue, thereby including those errors or omissions not brought to the attention of the Administrative Law Judge (ALJ) by means of a timely petition for reconsideration. Smith v. Dixie Fuel Co., 900 S.W.2d 609, 1995 Ky. LEXIS 83 ( Ky. 1995 ).

The 1994 amendment to this section provided that a party’s failure to file a timely petition for reconsideration before the ALJ would not preclude an appeal to the Workers’ Compensation Board on any issue, including patent errors or omissions of fact in the ALJ’s decision. Smith v. Dixie Fuel Co., 900 S.W.2d 609, 1995 Ky. LEXIS 83 ( Ky. 1995 ).

3. — 1996 Amendment.

The 1996 amendments were intended by the General Assembly to return to the requirement that a petition for reconsideration must be filed before an issue is preserved for appellate review. Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 2000 Ky. App. LEXIS 32 (Ky. Ct. App. 2000).

4. Construction.

This section is mandatory; a showing of good cause offers no relief from its provisions. Rice v. McCoy, 590 S.W.2d 340, 1979 Ky. App. LEXIS 485 (Ky. Ct. App. 1979).

This section is to be liberally construed and is not intended merely to address clerical errors but all patent errors; however, a petition may not be granted if it appears that the Workers’ Compensation Board has reconsidered the case on its merits and/or changed its factual findings. Wells v. Beth-Elkhorn Coal Corp., 708 S.W.2d 104, 1985 Ky. App. LEXIS 691 (Ky. Ct. App. 1985).

Because the evidence did not compel a finding that a worker was an employee of a contractor, and because there was no error or due process violation when a different administrative law judge ruled on the worker’s KRS 342.281 petition for reconsideration, the worker’s claim for workers’ compensation benefits was properly dismissed. Ranck v. Gray, 2005 Ky. App. LEXIS 215 (Ky. Ct. App.), sub. op., 2005 Ky. App. Unpub. LEXIS 995 (Ky. Ct. App. Sept. 30, 2005).

5. Petition.

The issue of whether the findings of the Workers’ Compensation Board were proven by substantial evidence goes to the merits of the case and was not a proper subject to be addressed by the Board in a petition for reconsideration; therefore, the court erred in dismissing the claimant’s appeal because the claimant failed to file such a petition. Francis v. Glenmore Distilleries, 718 S.W.2d 953, 1986 Ky. App. LEXIS 1476 (Ky. Ct. App. 1986).

6. — Time of Application.

Requirement that application for a review of an award must be made within 14 days from the date of the award is mandatory and strict compliance therewith is necessary. Johnson v. Eastern Coal Corp., 401 S.W.2d 230, 1966 Ky. LEXIS 410 ( Ky. 1966 ).

Where the claimant had no reason to ask the Board for reconsideration of its original award and it was only the subsequent award that was objectionable to him, a motion to set aside filed within seven days of the order reducing the payment was timely. Transport Motor Express, Inc. v. Finn, 568 S.W.2d 509, 1977 Ky. App. LEXIS 922 (Ky. Ct. App. 1977).

Neither this section nor the Workers’ Compensation Board’s regulations extends the time or provides for the filing of a petition for reconsideration more than 14 days after the date of the award, which means the original order, award or decision and the date of its entry, nor does this section permit a party to file a petition for reconsideration more than 14 days from the date of the original award, except where the subsequent order contained an error not present in the original award and, therefore, could not have been raised by the first petition for reconsideration. Tube Turns Div. of Chemetron v. Quiggins, 574 S.W.2d 901, 1978 Ky. App. LEXIS 632 (Ky. Ct. App. 1978).

This section cannot be construed to mandate a defeasance of the power to decide a petition for reconsideration by providing a time limit of ten days for issuing the decision; power to decide, once given, is not divested by an unreasonably short and impractical time period for decision making. Wells v. Ford, 714 S.W.2d 481, 1986 Ky. LEXIS 325 ( Ky. 1986 ).

The employer was entitled to credit only for pension disability payments made prior to the date of award, where the award stated that the employer was “to take credit for all payments of compensation heretofore made,” and the motion for credit filed over a year after the date of the award was not timely. Copher v. American Standard, 732 S.W.2d 508, 1987 Ky. App. LEXIS 483 (Ky. Ct. App. 1987).

Failure of administrative law judge (ALJ) to comply with administrative regulations requiring the service of notice of ALJ’s order of dismissal of claimant’s case on claimant worked to toll provisions of this section requiring claimant to observe specific time limits when filing a petition for reconsideration or notice of appeal. B.L. Radden & Sons v. Copley, 891 S.W.2d 84, 1995 Ky. App. LEXIS 6 (Ky. Ct. App. 1995).

7. Award.

The pervading policy is that awards may be changed in light of circumstances warranting such changes, but awards may not be modified capriciously or whimsically. Fayette County Board of Education v. Phillips, 439 S.W.2d 319, 1969 Ky. LEXIS 370 ( Ky. 1969 ).

Where a petition for reconsideration of the award was filed under this section, the Workers’ Compensation Board did not have authority to reverse itself on the merits of the claim. Beth-Elkhorn Corp. v. Nash, 470 S.W.2d 329, 1971 Ky. LEXIS 272 ( Ky. 1971 ).

Where the record considered by the Workers’ Compensation Board supported its decision, this section could not be used by the plaintiff in asking the Board to reconsider its opinion and award. Ford Furniture Co. v. Claywell, 473 S.W.2d 821, 1971 Ky. LEXIS 165 ( Ky. 1971 ).

8. — Mistake or Error.

The failure of the employer to apprise the Board at the outset of the fact within its knowledge that the claimant had other employment was such a mistake as would warrant reopening. Fayette County Board of Education v. Phillips, 439 S.W.2d 319, 1969 Ky. LEXIS 370 ( Ky. 1969 ).

Where a mistake occurred and was called to the attention of the Board by a motion to reopen, it was an abuse of discretion for the board to fail to amend its award in conformity with the admitted facts in the circumstances presented. Fayette County Board of Education v. Phillips, 439 S.W.2d 319, 1969 Ky. LEXIS 370 ( Ky. 1969 ).

Where the Workers’ Compensation Board’s original order awarded an employee 425 weeks of compensation from the date of disability rather than 425 weeks from the date of injury, the Board was not reconsidering the merits of the case but was merely correcting an error which patently appeared on the face of its original order when, upon the petition of the employer, it changed the award to 425 weeks from the date of injury. Reliance Diecasting Co. v. Freeman, 471 S.W.2d 311, 1971 Ky. LEXIS 237 ( Ky. 1971 ).

When the Board amends an award following a petition for reconsideration and makes a different award of benefits, the parties should not be foreclosed from seeking to correct a new error which did not appear in the original award. Messamore v. Peabody Coal Co., 569 S.W.2d 693, 1978 Ky. App. LEXIS 565 (Ky. Ct. App. 1978).

The Workers’ Compensation Board is permitted to correct an error as regards the time from which the compensation is to run. Beth-Elkhorn Corp. v. Lucas, 670 S.W.2d 480, 1983 Ky. App. LEXIS 349 (Ky. Ct. App. 1983), overruled, Williams v. Eastern Coal Corp., 952 S.W.2d 696, 1997 Ky. LEXIS 108 ( Ky. 1997 ).

The Workers’ Compensation Board properly entertained and ruled upon the employer’s petition for reconsideration, since in doing so it merely clarified the “compensation heretofore paid by the employer” language in their original award, by correcting the time from which the workers’ compensation award was to run. Beth-Elkhorn Corp. v. Lucas, 670 S.W.2d 480, 1983 Ky. App. LEXIS 349 (Ky. Ct. App. 1983), overruled, Williams v. Eastern Coal Corp., 952 S.W.2d 696, 1997 Ky. LEXIS 108 ( Ky. 1997 ).

No award, order or decision of the Workers’ Compensation Board shall be reversed or remanded on appeal to any court because of failure of the Board to make findings of an essential fact unless said failure is brought to the attention of the Board by petition for rehearing pursuant to this section. Eaton Axle Corp. v. Nally, 688 S.W.2d 334, 1985 Ky. LEXIS 219 ( Ky. 1985 ), dismissed, Whittaker v. Reeder, 2000 Ky. LEXIS 93 (Ky. Aug. 24, 2000).

The logical extension of the Workers’ Compensation Board’s authority to correct a petition for reconsideration under this section, is the authority to decide a still unresolved question on the merits. Wells v. Ford, 714 S.W.2d 481, 1986 Ky. LEXIS 325 ( Ky. 1986 ).

Where the Workers’ Compensation Board’s first opinion required that the lack of notice defense must be affirmatively pled, it contained an error of law, patent on its face, and the Board acted within its authority when, pursuant to the petition for reconsideration, it withdrew its original opinion and award, and then considered the notice question on the merits. Wells v. Ford, 714 S.W.2d 481, 1986 Ky. LEXIS 325 ( Ky. 1986 ).

9. Appeal.

Where employer’s petition for reconsideration of Workers’ Compensation Board’s award, filed within 14 days after the award, was overruled by the Board and within 20 days from the date of overruling the petition an appeal was filed with the Circuit Court from the Board’s award, the appeal was filed within the statutory time limit under KRS 342.285 . Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367, 1971 Ky. LEXIS 105 ( Ky. 1971 ).

If the Board desires to grant a timely petition for reconsideration filed after another party has perfected an appeal to Circuit Court, the Board should indicate to the Circuit Court that it desires to so rule, and the Circuit Court should remand the case to the Board so that it may act on the petition for reconsideration, and, in such cases, the party filing the petition for reconsideration with the Board should also file a cross-appeal to the Circuit Court in order to protect that party’s rights in the event that the Board does not request remand for the purpose of granting the petition for reconsideration. Messamore v. Peabody Coal Co., 569 S.W.2d 693, 1978 Ky. App. LEXIS 565 (Ky. Ct. App. 1978).

The Board’s jurisdiction to consider a pending petition for reconsideration is not defeated by the subsequent filing of a petition for review, since a petition for review filed subsequent to a timely petition for reconsideration is a nullity. Messamore v. Peabody Coal Co., 569 S.W.2d 693, 1978 Ky. App. LEXIS 565 (Ky. Ct. App. 1978).

Where the 20th day after the entry of the order by the Board overruling the petition for reconsideration was on a Sunday, it was permissible to file the petition for review with the court on the following Monday. Queen City Dinette Co. v. Grant, 477 S.W.2d 808, 1972 Ky. LEXIS 372 ( Ky. 1972 ).

Neither the Circuit Court nor the Court of Appeals had authority to overturn the finding of fact made by the Workers’ Compensation Board on the question of whether the employer received notice because the employee did not challenge on appeal whether the record would support this finding; instead, his appeal to the courts simply challenged the authority of the Board to entertain this question in the petition for reconsideration stage and change its opinion. Wells v. Ford, 714 S.W.2d 481, 1986 Ky. LEXIS 325 ( Ky. 1986 ).

The Supreme Court declined to address whether or not the Uninsured Employer’s Fund, disputing a former coal miner’s claim to the Workers’ Compensation Board, needed to file a petition for reconsideration in order to preserve for review the defense of self-employment, where the fund failed to raise the issue before the Court of Appeals. Uninsured Employers' Fund v. Brewster, 818 S.W.2d 602, 1991 Ky. LEXIS 143 ( Ky. 1991 ).

Although a workers’ compensation case was under submission before the Court of Appeals when this section was amended in 1994 to provide that the failure to file a petition for reconsideration shall not preclude an appeal on any issue, the procedural change effected by the amendment was inapplicable where the argument that amendment was remedial was not preserved for judicial review and where the question of amendment’s applicability first arose before the Supreme Court. Smith v. Dixie Fuel Co., 900 S.W.2d 609, 1995 Ky. LEXIS 83 ( Ky. 1995 ).

Board’s decision that a doctor’s opinion as to a worker’s impairment was not supported by substantial evidence construed KRS 342.730 and was not based on factual considerations; thus, pursuant to KRS 342.285 , the issue was one of law and did not require the employer to first file a petition for reconsideration under KRS 342.281 in order to preserve the issue for review. Brasch-Barry Gen. Contrs. v. Jones, 175 S.W.3d 81, 2005 Ky. LEXIS 326 ( Ky. 2005 ).

Since the administrative law judge (ALJ) did not give a university evaluator’s report presumptive weight or state his reasons for rejecting it under KRS 342.315(2) because he was unaware of it, and since KRS 342.281 would not have permitted him to reconsider the merits in light of the evaluator’s report, the claimant did not have to petition the ALJ for reconsideration to preserve the error. Bullock v. Goodwill Coal Co., 214 S.W.3d 890, 2007 Ky. LEXIS 27 ( Ky. 2007 ).

Subcontractor’s failure to move for reconsideration of an administrative law judge’s (ALJ) factual findings was not fatal to the subcontractor’s appeal of the ALJ’s decision because the appeal primarily concerned the manner in which the ALJ applied the law to those findings. Uninsured Employers' Fund v. Stanford, 399 S.W.3d 26, 2013 Ky. LEXIS 37 ( Ky. 2013 ).

Employee’s appeal of an order affirming the denial of benefits for a knee injury and two back surgeries need not be dismissed because the issues of whether substantial evidence supported the Administrative Law Judge’s findings and whether the evidence would compel a different result were questions of law that the supreme court could, and must, address. Wilkerson v. Kimball Int'l, Inc., 585 S.W.3d 231, 2019 Ky. LEXIS 373 ( Ky. 2019 ).

10. — Finality of Order.

Where there were multiple parties and petitions for reconsideration, the award’s finality was destroyed by filing the first petition, and the entire case on appeal to the Circuit Court as to all parties should have been held in abeyance until the last of the multiple considerations had been overruled, as the time when the last petition was overruled was when the award again became final and the time for appeal to the Circuit Court again commenced. Yocom v. Payne, 512 S.W.2d 517, 1974 Ky. LEXIS 403 ( Ky. 1974 ).

In a workers’ compensation case, an award becomes final unless a request to reconsider the award is filed within 14 days, or an appeal is taken to Circuit Court within 20 days and when an award does become final as provided in the statutes, it has the same finality as a court judgment. Keefe v. O. K. Precision Tool & Die Co., 566 S.W.2d 804, 1978 Ky. App. LEXIS 535 (Ky. Ct. App. 1978).

The rule that the filing of a petition for reconsideration destroys the finality of an award is limited to cases in which the petition for reconsideration before the Board and the petition for review to the Circuit Court are both filed on the same day. Messamore v. Peabody Coal Co., 569 S.W.2d 693, 1978 Ky. App. LEXIS 565 (Ky. Ct. App. 1978).

11. Petition Granted.

Where no alteration or amendment of the findings occurred, the Workers’ Compensation Board did not conduct a trial de novo on the merits, and the Board merely altered its apportionment to reflect the interpretation of the Workers’ Compensation Statutes in this area in light of a Kentucky Supreme Court case, the Board had the power both to hear and to grant the employer’s petition for reconsideration to correct a patent error of law on the face of the award. Wells v. Beth-Elkhorn Coal Corp., 708 S.W.2d 104, 1985 Ky. App. LEXIS 691 (Ky. Ct. App. 1985).

Cited:

Collista Coal Co. v. Castle, 407 S.W.2d 719, 1966 Ky. LEXIS 187 ( Ky. 1966 ); Snawder v. Stice, 576 S.W.2d 276, 1979 Ky. App. LEXIS 369 (Ky. Ct. App. 1979); Curtis v. Belden Electronic Wire & Cable, Div. of Cooper Industries, Inc., 760 S.W.2d 97, 1988 Ky. App. LEXIS 111 (Ky. Ct. App. 1988); Osborne v. Pepsi-Cola, 816 S.W.2d 643, 1991 Ky. LEXIS 144 ( Ky. 1991 ); Garrett Mining Co. v. Nye, 122 S.W.3d 513, 2003 Ky. LEXIS 231 ( Ky. 2003 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 64 Ky. L.J. 307 (1975-76).

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Northern Kentucky Law Review.

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

342.285. Appeal to Workers’ Compensation Board — Remanding claim to administrative law judge.

  1. An award or order of the administrative law judge as provided in KRS 342.275 , if petition for reconsideration is not filed as provided for in KRS 342.281 , shall be conclusive and binding as to all questions of fact, but either party may in accordance with administrative regulations promulgated by the commissioner appeal to the Workers’ Compensation Board for the review of the order or award.
  2. No new or additional evidence may be introduced before the board except as to the fraud or misconduct of some person engaged in the administration of this chapter and affecting the order, ruling, or award, but the board shall otherwise hear the appeal upon the record as certified by the administrative law judge and shall dispose of the appeal in summary manner. The board shall not substitute its judgment for that of the administrative law judge as to the weight of evidence on questions of fact, its review being limited to determining whether or not:
    1. The administrative law judge acted without or in excess of his powers;
    2. The order, decision, or award was procured by fraud;
    3. The order, decision, or award is not in conformity to the provisions of this chapter;
    4. The order, decision, or award is clearly erroneous on the basis of the reliable, probative, and material evidence contained in the whole record; or
    5. The order, decision, or award is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
  3. Within sixty (60) days following the date on which the last appellate brief was filed, the board shall enter its decision affirming, modifying, or setting aside the order, decision, or award, or in its discretion remanding the claim to the administrative law judge for further proceedings in conformity with the direction of the board. The board may, before decision and upon a sufficient showing of fact, remand the claim to the administrative law judge.

History. 4935: amend. Acts 1948, ch. 152, § 1; 1960, ch. 147, § 15; 1962, ch. 18; 1964, ch. 192, § 22; 1972, ch. 78, § 32, effective January 1, 1973; 1976, ch. 111, § 1; 1987 (Ex. Sess.), ch. 1, § 34, effective January 4, 1988; 1994, ch. 181, Part 15, § 82, effective April 4, 1994; 1996, ch. 355, § 9, effective July 15, 1996; 2010, ch. 24, § 1814, effective July 15, 2010.

Compiler’s Notes.

Many of the following decisions were decided prior to the 1987 amendment of this section.

NOTES TO DECISIONS

Analysis

  1. Constitutionality.
  2. Purpose.
  3. Application.
  4. Construction.
  5. — Mandatory.
  6. Award or Order.
  7. — Entry.
  8. — Appealability.
  9. — Commencement.
  10. — Enforcement.
  11. — Rendition.
  12. — Finality.
  13. — — Failure to Appeal.
  14. — — Full Board.
  15. — — Referee’s Decision.
  16. Petition for Review.
  17. — Cross-Appeal.
  18. — Sufficiency.
  19. — Time of Filing.
  20. — — Computation.
  21. — — Extension.
  22. — — Late.
  23. — Parties.
  24. — — Intervention.
  25. — Summons.
  26. — — Waiver.
  27. — Answer.
  28. Remand.
  29. Review.
  30. — Prerequisites.
  31. — Questions of Fact.
  32. — Scope.
  33. — — Limitations.
  34. —Matter of Law.
  35. — —Evidence.
  36. — — —New or Additional.
  37. — — —Weight and Sufficiency.
  38. — — — Circumstantial.
  39. — — —Medical Testimony.
  40. — — — Conflicting.
  41. Fraud.
  42. Venue.
  43. Decision of Board.
  44. — Question of Fact.
  45. —Affirming.
  46. —Reversing.
  47. Withdrawal of Opinion.
  48. — Findings.
  49. Board’s Discretion.
  50. Relief Awarded.
  51. Temporary Total Disability Benefits.
  52. Stipulation.
  53. Majority Approval Required.
  54. Decision of Nonappointed Commissioner.

40. — — —Conflicting.

1. Constitutionality.

The right of appeal under this section was not unconstitutional. Wells Elkhorn Coal Co. v. Vanhoose, 220 Ky. 381 , 295 S.W. 464, 1927 Ky. LEXIS 563 ( Ky. 1927 ).

No arbitrary power is exercised over the rights of freemen in the requirement that a workers’ compensation claimant must adduce compelling evidence to overcome an adverse finding of the Workers’ Compensation Board; therefore, Const., § 2 does not require the abolishment of the compelling evidence rule of this section. Tucker v. Tri-State Lawn & Garden, Inc., 708 S.W.2d 116, 1986 Ky. App. LEXIS 1056 (Ky. Ct. App. 1986).

2. Purpose.

The purpose of this section is to secure a speedy settlement of compensation matters. Washington v. Clover Fork Coal Co., 269 Ky. 604 , 108 S.W.2d 502, 1937 Ky. LEXIS 638 ( Ky. 1937 ).

3. Application.

This section applies where the award of the Board is regular and has been arrived at under proper practice and application of the rules of the Board. Blue Diamond Coal Co. v. Hensley, 314 Ky. 85 , 234 S.W.2d 317, 1950 Ky. LEXIS 1033 ( Ky. 1950 ).

Under KRS 342.285 , the administrative law judge (ALJ) was designated the finder of fact in workers’ compensation cases and under KRS 342.290 , the Board or a reviewing court could not substitute its judgment for the ALJs as to the weight of evidence on questions of fact. As a result, the state supreme court had to uphold the ALJ’s ruling in favor of the employee on the employee’s occupational hearing loss claim against the employer, as substantial evidence in the record showed the employee suffered a pattern of hearing loss compatible with that caused by hazardous noise exposure, and substantial evidence also showed that the employee sustained repetitive exposure to KRS 342.0011(4) injurious noise in the workplace, including the employee’s final employment with the employer, meaning the employer was exclusively liable for KRS 342.7305(4) benefits. Greg's Constr. v. Keeton, 385 S.W.3d 420, 2012 Ky. LEXIS 124 ( Ky. 2012 ).

Board had the authority to vacate an order that the Chief Administrative Law Judge (ALJ) entered that resolved a post-award medical fee dispute that the employer filed against the employee. Under KRS 342.285 , the Board could determine whether the ALJ acted in excess of his powers and that the order was not in conformity to the provisions of KRS 342.0011 et seq., and could vacate the order the ALJ entered in the dispute because, pursuant to KRS 342.230(8), the ALJ was tasked with scheduling the work of the administrative law judges and could not, as the ALJ did in the dispute, assign the matter to his own docket once the ALJ determined that the employer had made a prima facie case supporting its motion to reopen. Twin Res., LLC v. Workman, 394 S.W.3d 417, 2013 Ky. App. LEXIS 42 (Ky. Ct. App. 2013).

Under KRS 342.275(2) and 342.285 , the Workers’ Compensation Board (Board) did not err by concluding that the ALJ failed to make sufficient findings of fact adequately supported by the evidence; nor did it err in determining that adequate evidence did not properly support the ALJ’s rejection of the doctor’s opinion with respect to causation, and the Board did not err in remanding the employee’s claim for additional consideration. Meuth Concrete v. Kindle, 2012 Ky. App. LEXIS 299 (Ky. Ct. App. Dec. 21, 2012), aff'd, 2014 Ky. Unpub. LEXIS 36 (Ky. June 19, 2014).

4. Construction.

KRS 413.250 must be read with this section in order to determine whether the Circuit Court has jurisdiction in appeal from Workers' Compensation Board. Blue Grass Mining Co. v. North, 265 Ky. 250 , 96 S.W.2d 757, 1936 Ky. LEXIS 470 ( Ky. 1936 ).

5. — Mandatory.

This section is mandatory and cannot be waived. Department of Highways v. Matney, 290 Ky. 440 , 161 S.W.2d 617, 1942 Ky. LEXIS 414 ( Ky. 1942 ).

This section inhibits the Circuit Court from substituting its judgment for that of the board. Pittsburg & Midway Coal Mining Co. v. Rushing, 456 S.W.2d 816, 1969 Ky. LEXIS 4 ( Ky. 1969 ).

6. Award or Order.

Administrative law judge (ALJ) committed an egregious error constituting manifest injustice when the ALJ entered an interlocutory opinion, order, and award determining that an employee had not reached maximum medical improvement, did not yet qualify for assignment of a permanent impairment rating, and could perform only some work activities and then revised all of these determinations in a final opinion based on the same evidence. Bowerman v. Black Equip. Co., 297 S.W.3d 858, 2009 Ky. App. LEXIS 189 (Ky. Ct. App. 2009).

7. — Entry.

Because regardless of when a judgment or order is rendered, it is its notation in the docket by the clerk which constitutes “entry,” where there was no indication that the Workers’ Compensation Board’s decision was noted on the docket on the date of rendition, Court of Appeals’ dismissal of claim as untimely was reversed and case remanded with claimant ordered to obtain and file with the court, within 21 days, a document containing a certificate which reflected the date upon which the decision of the Board was entered and the date upon which the parties were served with notice of the decision. Staton v. Poly Weave Bag Co., 930 S.W.2d 397, 1996 Ky. LEXIS 81 ( Ky. 1996 ).

8. — Appealability.

Where injured employee was awarded maximum amount of compensation at rate of $15.00 per week and no evidence was introduced on this point, the award was not a finding of fact upon an issue in the evidence but an erroneous conclusion of law upon undisputed facts and therefore subject to review by the courts. Jellico Coal Mining Co. v. Chatfield, 200 Ky. 842 , 255 S.W. 842, 1923 Ky. LEXIS 205 ( Ky. 1923 ).

Where the compensation board enters an award under an agreed or uncontradicted state of facts which is not authorized by law, such an award is not a finding of fact upon an issue but is an erroneous application of the law to the facts and is reviewable by the courts. Consolidation Coal Co. v. Ratliff, 217 Ky. 103 , 288 S.W. 1057, 1926 Ky. LEXIS 31 ( Ky. 1926 ). See Wells Elkhorn Coal Co. v. Vanhoose, 220 Ky. 381 , 295 S.W. 464, 1927 Ky. LEXIS 563 ( Ky. 1927 ); Three Rivers Oil Corp. v. Harper, 258 Ky. 253 , 79 S.W.2d 972, 1935 Ky. LEXIS 805 ( Ky. 1935 ).

Where employer made application for full board review of award made by single member of board and, at same time, filed petition of appeal to Circuit Court, petition of appeal could not be acted on while application for full board review was pending. Inter-Mountain Coal & Lumber Co. v. Harris, 223 Ky. 258 , 3 S.W.2d 602, 1928 Ky. LEXIS 313 ( Ky. 1928 ).

If, after hearing, Board modifies or decreases existing award, its order to that effect would be final and appealable and, on appeal, employer could present question whether Board wrongfully reopened case; but until Board makes order which is in some respect a final determination of right to or liability for compensation, that is, until it sets aside, modifies, or reduces the existing award, no appeal lies. North American Refractories Co. v. Day, 284 Ky. 458 , 145 S.W.2d 75, 1940 Ky. LEXIS 526 ( Ky. 1940 ).

Order of Board granting to employer reopening of case because of alleged improvement in employee’s condition, notwithstanding board had formerly denied reopening on same factual situation, was not final, appealable order. North American Refractories Co. v. Day, 284 Ky. 458 , 145 S.W.2d 75, 1940 Ky. LEXIS 526 ( Ky. 1940 ).

Order of Circuit Court, made on court’s own motion, remanding case to board for further proof was a final and appealable order. Kenmont Coal Co. v. Clark, 294 Ky. 226 , 171 S.W.2d 242, 1943 Ky. LEXIS 413 ( Ky. 1943 ).

There is no authority for appealing from a statement appearing in a written opinion of the Board, particularly where the statement was not relevant to the disposition of the case. Brown Equipment Co. v. Duff, 394 S.W.2d 926, 1965 Ky. LEXIS 228 ( Ky. 1965 ).

Order overruling motion to make the special fund a party was not appealable. Seidl v. Willen, 411 S.W.2d 29, 1967 Ky. LEXIS 448 ( Ky. 1967 ).

9. — Commencement.

The rule that an action is not commenced so as to stop the running of limitations until a summons is issued in good faith applies with even greater force to an appeal from an award of the board. Blue Grass Mining Co. v. North, 265 Ky. 250 , 96 S.W.2d 757, 1936 Ky. LEXIS 470 ( Ky. 1936 ).

10. — Enforcement.

Award by Board, even if erroneous, can be enforced where no appeal was taken in the time prescribed. Harlan Wallins Coal Corp. v. Hensley, 237 Ky. 310 , 35 S.W.2d 333, 1931 Ky. LEXIS 598 ( Ky. 1931 ).

11. — Rendition.

“Rendition” is discharge by board of its lawful duties, including sending copy of award immediately to parties in dispute, and mere preparation, dating and signing award or order does not fulfill this requirement. Jones v. Davis, 246 Ky. 293 , 54 S.W.2d 681, 1932 Ky. LEXIS 734 ( Ky. 1932 ).

Where it was shown without dispute that no copy of award was in fact sent by Board to applicant or his counsel, Board omitted one of essential elements of “rendition” with respect to right to review by full Board. Jones v. Davis, 246 Ky. 293 , 54 S.W.2d 681, 1932 Ky. LEXIS 734 ( Ky. 1932 ).

In a workers' compensation case, an administrative law judge's rendered opinion and award did not prohibit the parties from reaching a subsequent settlement of the issues in question after the proof was reopened. If the e-mails between counsel for indeed memorialized all of the terms to which they agreed, the agreement was valid and enforceable. Cross Maint., LLC v. Riddle, 2015 Ky. App. LEXIS 68 (Ky. Ct. App. May 15, 2015), aff'd, 2016 Ky. Unpub. LEXIS 20 (Ky. Mar. 17, 2016).

12. — Finality.

Where there were multiple parties and petitions for reconsideration, the finality of the award was destroyed by the first petition, and the entire case as to all parties should have been held in abeyance until the last of the multiple considerations had been overruled, as the time when the last petition was overruled was when the award again became final and the time for appeal to the Circuit Court again commenced. Yocom v. Payne, 512 S.W.2d 517, 1974 Ky. LEXIS 403 ( Ky. 1974 ).

In a workers’ compensation case, an award becomes final unless a request to reconsider the award is filed within 14 days, or an appeal is taken to Circuit Court within 20 days and when an award does become final as provided in the statutes, it has the same finality as a court judgment. Keefe v. O. K. Precision Tool & Die Co., 566 S.W.2d 804, 1978 Ky. App. LEXIS 535 (Ky. Ct. App. 1978).

A literal reading of this section might indicate that, in the absence of a petition for reconsideration, the Board’s findings must be accepted without question by the court as “conclusive and binding,” but the proper scope of judicial review of the Board’s findings of fact is found in subsection (3)(d) (now (2)(d)) of this section and any interpretation of the language of subsection (1) of this section must be read in light of subsection (3) (now (2)). Snawder v. Stice, 576 S.W.2d 276, 1979 Ky. App. LEXIS 369 (Ky. Ct. App. 1979).

The phrase “conclusive and binding” should be construed as meaning “final,” and a proper reading of subsection (1) of this section would be that a decision of the Board is “final” unless a petition for reconsideration is filed destroying its finality or unless one of the parties appeals the decision to the Circuit Court. Snawder v. Stice, 576 S.W.2d 276, 1979 Ky. App. LEXIS 369 (Ky. Ct. App. 1979).

Workers’ Compensation Board’s award of medical and total temporary benefits represents a final and appealable order under this section. Tube Turns Div. v. Logsdon, 677 S.W.2d 897, 1984 Ky. App. LEXIS 610 (Ky. Ct. App. 1984).

The doctrine of relation forward applies to a workers’ compensation case where, due to the filing of a motion for reconsideration, an appeal is prematurely filed prior to an order becoming final. Whittaker v. Wright, 969 S.W.2d 209, 1998 Ky. LEXIS 80 ( Ky. 1998 ).

13. — — Failure to Appeal.

Where the Workers’ Compensation Board arithmetically erred in calculating the amount the special fund had to pay to a claimant, the fund did not properly preserve the error for appellate review when it did not take a direct appeal from the Board’s order to the Circuit Court, and did not file a cross claim in the employer’s appeal until after the 20-day period after the Board’s award as required by this section. Department of Economic Sec. v. Sizemore, 471 S.W.2d 733, 1971 Ky. LEXIS 261 ( Ky. 1971 ).

Where a claimant received a copy of the Workers’ Compensation Board’s Order of Submission, but did not receive a copy of the Board’s opinion until after the time to appeal had run, he should have been on notice that an opinion had been rendered. Thus, his failure to timely file a notice of appeal did not constitute substantial compliance, and the failure to file was fatal to the appeal. Rainwater v. Jasper & Jasper Mobile Homes, Inc., 810 S.W.2d 63, 1991 Ky. App. LEXIS 68 (Ky. Ct. App. 1991).

14. — — Full Board.

An award by full Board becomes final upon its entry. Carrs Fork Coal Co. v. Scott, 204 Ky. 656 , 265 S.W. 19, 1924 Ky. LEXIS 533 ( Ky. 1924 ), limited, Spencer v. Chavies Coal Co., 280 Ky. 152 , 132 S.W.2d 746, 1939 Ky. LEXIS 77 ( Ky. 1939 ).

An order of the Workers’ Compensation Board refusing to allow additional proof to be taken and ratifying a previous order dismissing application was a final order subject to review in the Circuit Court within the statutory time. Louisville Gas & Electric Co. v. Duncan, 235 Ky. 613 , 31 S.W.2d 915, 1929 Ky. LEXIS 458 ( Ky. 1929 ).

When review of compensation award was made by full Board, resulting award was final disposition of case, and only remedy at that point was appeal to Circuit Court within 20 days from such final action of Board. Washington v. Clover Fork Coal Co., 269 Ky. 604 , 108 S.W.2d 502, 1937 Ky. LEXIS 638 ( Ky. 1937 ).

Award based on mere surmises and remote possibilities supported only by speculative evidence will not be sustained by court. Owensboro v. Day, 284 Ky. 644 , 145 S.W.2d 856, 1940 Ky. LEXIS 564 ( Ky. 1940 ).

Where application for full Board review was not filed until more than seven days after date of award, the award became final and could be reviewed only by appeal within 20 days as provided in this section. Webb v. Montgomery Ward & Co., 303 Ky. 152 , 197 S.W.2d 90, 1946 Ky. LEXIS 809 ( Ky. 1946 ).

When the Board enters a final order, it is conclusive and binding and any attempt by it to change or modify the order is void and of no effect. Paul v. Allender Brown Co., 249 S.W.2d 163, 1952 Ky. LEXIS 813 ( Ky. 1952 ).

The award will not be disturbed by the courts if it is not clearly erroneous and is based on “reliable, probative, and material evidence.” Belknap Hardware & Mfg. Co. v. Brown, 402 S.W.2d 848, 1966 Ky. LEXIS 384 ( Ky. 1966 ).

15. — — Referee’s Decision.

Until a referee’s order or award is approved by a majority of the Board and entered on the record of its proceedings, no application for its review can be made to the full Board and no appeal can be taken to the Circuit Court. Spencer v. Chavies Coal Co., 280 Ky. 152 , 132 S.W.2d 746, 1939 Ky. LEXIS 77 ( Ky. 1939 ).

Award by referee is not final order reviewable by court but must be approved by Board on its record as provided in KRS 342.255 (now repealed). Crummies Creek Coal Co. v. Hensley, 284 Ky. 243 , 144 S.W.2d 206, 1940 Ky. LEXIS 461 ( Ky. 1940 ).

An opinion of a referee is not an award or final order of the Board or a member thereof so as to authorize an appeal to the Circuit Court. Kabai v. Majestic Collieries Co., 286 Ky. 279 , 150 S.W.2d 898, 1941 Ky. LEXIS 260 ( Ky. 1941 ).

The findings, awards, and orders made by referees do not become those of the Board until approved by a majority of its members and, where this has not been done, there is no final determination and nothing for the Circuit Court to review. Creech v. Roberts, 362 S.W.2d 734, 1962 Ky. LEXIS 266 ( Ky. 1962 ).

16. Petition for Review.

The appellant-employer, by merely filing the petition for review with the Circuit Court clerk accompanied by a check for the clerk’s cost and thereafter making no effort whatever, within a reasonable time or otherwise, to effect those acts required by this section to secure the judicial review of the administrative order, cannot be said to have substantially complied with the statutory requirements. Scott Bros. Logging & Lumber Co. v. Cobb, 465 S.W.2d 241, 1971 Ky. LEXIS 438 ( Ky. 1971 ).

A notice of appeal clearly stating an intention to invoke the jurisdiction of the workers’ compensation board under this section could not be properly treated by the Department as a request for a hearing before the administrative law judge under KRS 342.275 . Appalachian Steel Constr., Inc. v. Honaker, 2000 Ky. App. LEXIS 58 (Ky. Ct. App. May 26, 2000).

17. — Cross-Appeal.

Where the special fund cross-appealed 23 days after the entry of the board’s order, the pleading was too late to be acceptable as a cross-appeal and was properly dismissed. Young v. Terwort, 459 S.W.2d 136, 1970 Ky. LEXIS 117 ( Ky. 1970 ).

18. — Sufficiency.

An appeal should not be dismissed because in its petition for review it did not set forth the grounds included in the statute where the allegations in the petition clearly set forth the alleged errors. Mullins v. Superior Furniture & Mfg. Co., 477 S.W.2d 775, 1972 Ky. LEXIS 358 ( Ky. 1972 ).

Petition seeking review of a decision by the Workers’ Compensation Board should not have been dismissed for failure to join the administrative law judge who rendered the decision as a respondent. Stahl v. Panarama Rest Care, 788 S.W.2d 276, 1990 Ky. App. LEXIS 64 (Ky. Ct. App. 1990).

19. — Time of Filing.

An appeal may be taken to the courts within 20 days from an award by a single member of the Board without having a review by entire Board. Junior Oil Co. v. Byrd, 204 Ky. 375 , 264 S.W. 846, 1924 Ky. LEXIS 461 ( Ky. 1924 ), limited, Spencer v. Chavies Coal Co., 280 Ky. 152 , 132 S.W.2d 746, 1939 Ky. LEXIS 77 ( Ky. 1939 ).

An appeal from award of Workers’ Compensation Board must be taken within 20 days and a petition for review of full Board, not filed within seven days, will not extend the time for appeal to the court. Carrs Fork Coal Co. v. Scott, 204 Ky. 656 , 265 S.W. 19, 1924 Ky. LEXIS 533 ( Ky. 1924 ), limited, Spencer v. Chavies Coal Co., 280 Ky. 152 , 132 S.W.2d 746, 1939 Ky. LEXIS 77 ( Ky. 1939 ).

Time for appeal ran from entry of full board order and not from time of making of prior unsigned order by single member of the Board. American Bituminous Coal Co. v. Ponder, 228 Ky. 776 , 15 S.W.2d 507, 1929 Ky. LEXIS 631 ( Ky. 1929 ).

A petition for review in the Circuit Court of an award of the Workers’ Compensation Board must be filed within 20 days from the rendition of the award and, where the board entered an order on May 15 dismissing the claim, petition for review was filed June 4, and on June 5 the full Board entered an order sustaining its original order, petition of appeal filed on June 25 was filed on the twenty-first day and was too late. Verda Harlan Coal Co. v. Harlan Nat'l Bank, 229 Ky. 565 , 17 S.W.2d 718, 1929 Ky. LEXIS 808 ( Ky. 1929 ).

The provision of this section limiting the time in which appeals may be taken to 20 days is mandatory. Hill v. Consolidated Coal Co., 232 Ky. 641 , 24 S.W.2d 261, 1930 Ky. LEXIS 55 ( Ky. 1930 ).

The Circuit Court does not acquire jurisdiction to entertain an appeal not taken within the prescribed time. Sandlick Coal Co. v. Hughes, 239 S.W.2d 258, 1951 Ky. LEXIS 874 ( Ky. 1951 ).

The Circuit Court has no jurisdiction to review a decision of the compensation board unless the petition is filed within 20 days after its rendition. Clark v. Tecon Corp., 371 S.W.2d 861, 1963 Ky. LEXIS 119 ( Ky. 1963 ).

The time within which a petition for review must be filed is mandatory and, if it is not complied with, the Circuit Court acquires no jurisdiction. Kendrick v. Fields, 384 S.W.2d 64, 1964 Ky. LEXIS 70 ( Ky. 1964 ).

Where employer’s petition for reconsideration of Workers’ Compensation Board’s award, filed within 14 days after the award, was overruled by the Board and, within 20 days from the date of overruling the petition, an appeal was filed with the Circuit Court from the Board’s award, the appeal was filed within the statutory time limit. Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367, 1971 Ky. LEXIS 105 ( Ky. 1971 ).

In light of CR 6.01, the court correctly permitted the petition for review to be filed on the 21st day following the final order of the Board overruling the petition for reconsideration, the 20th day following the final order being a Sunday. Queen City Dinette Co. v. Grant, 477 S.W.2d 808, 1972 Ky. LEXIS 372 ( Ky. 1972 ).

The 20-day period for filing petition for appeal from order of Workers’ Compensation Board runs from the date of rendition of the order, not its service upon the parties and, thus, 20-day period need not be extended by additional three days where service of order was by mail. Lockard v. Workmen's Compensation Board, 554 S.W.2d 396, 1977 Ky. App. LEXIS 760 (Ky. Ct. App. 1977).

The notice of appeal filed by the claimant was timely where a motion for reconsideration was filed by the employer, destroying the finality of the award, and the notice of appeal was properly filed within 20 days of the subsequent final award. Francis v. Glenmore Distilleries, 718 S.W.2d 953, 1986 Ky. App. LEXIS 1476 (Ky. Ct. App. 1986).

The substantial compliance doctrine does not apply to the timeliness of filing of a notice of appeal to the Workers’ Compensation Board. Therefore, where the notice was received by the board 31 days after the Administrative Law Judge’s decision was filed, claimant’s appeal was dismissed. Workers' Compensation Bd. v. Siler, 840 S.W.2d 812, 1992 Ky. LEXIS 166 ( Ky. 1992 ).

20. — — Computation.

The time for taking an appeal from an award of the Workers’ Compensation Board to the Circuit Court begins to run from the entry of a final order by the full Board and, where the original award was made by the full Board, the time for such appeal could not be extended by filing a motion for a full Board review. Lena Rue Coal Co. v. Brewer, 213 Ky. 327 , 280 S.W. 1097, 1926 Ky. LEXIS 508 ( Ky. 1926 ).

The 20-day period under this section in which a review of an award of the Compensation Board may be taken to the Circuit Court begins to run from the date the award was made and filed and copies sent to counsel and not from the date the secretary signed the order book. Carnahan Oil & Refining Co. v. Miller, 232 Ky. 78 , 22 S.W.2d 430, 1929 Ky. LEXIS 394 ( Ky. 1929 ).

If the award is made by only one member of the Board and an application is made for a review before the full Board within seven days, then the 20 days is counted from the final action of the full Board. Washington v. Clover Fork Coal Co., 269 Ky. 604 , 108 S.W.2d 502, 1937 Ky. LEXIS 638 ( Ky. 1937 ).

The 20 day period runs in all cases from the time there is entered an award by the full board. Washington v. Clover Fork Coal Co., 269 Ky. 604 , 108 S.W.2d 502, 1937 Ky. LEXIS 638 ( Ky. 1937 ).

When an order or award is made by a referee and approved by a majority of the Board or is made by less than the full Board, the 20 days allowed for appeal to the Circuit Court do not begin to run until the elapse of the seven days allowed for an application for a full Board review. Spencer v. Chavies Coal Co., 280 Ky. 152 , 132 S.W.2d 746, 1939 Ky. LEXIS 77 ( Ky. 1939 ).

The computation of the 20 days is made from the act of the rendition of the award and not from the day of the award; therefore, the day the award was entered must be included in the 20-day period. Webb v. Montgomery Ward & Co., 303 Ky. 152 , 197 S.W.2d 90, 1946 Ky. LEXIS 809 ( Ky. 1946 ).

Where the Board issued an opinion and award, and subsequently, on its own motion, corrected an error in the original award which was merely in the nature of a typographical error, the 20-day period for filing an appeal began running on the issuance of the original award. Vincent v. Fruehauf Corp., 562 S.W.2d 673, 1978 Ky. App. LEXIS 476 (Ky. Ct. App. 1978).

21. — — Extension.

Where the full Board acts originally, the time for bringing an action in the Circuit Court cannot be extended by filing an application before the Board for a review of its decision. Washington v. Clover Fork Coal Co., 269 Ky. 604 , 108 S.W.2d 502, 1937 Ky. LEXIS 638 ( Ky. 1937 ).

22. — — Late.

An appeal to the Circuit Court from an award of the Board taken four months after Board’s award was too late. Kentucky Wagon Mfg. Co. v. Esters, 221 Ky. 63 , 297 S.W. 811, 1927 Ky. LEXIS 651 ( Ky. 1927 ).

Where claim for compensation was denied by member of Board, review by the full Board was not asked within seven days thereafter, and appeal to Circuit Court was not taken within 20 days after expiration of seven-day period, appeal was too late and was properly dismissed. Southern Mining Co. v. Collins, 222 Ky. 388 , 300 S.W. 896, 1927 Ky. LEXIS 931 ( Ky. 1927 ).

Where the petition for reconsideration by the Workers’ Compensation Board was untimely taken, any right of appeal to the Circuit Court was lost. Rice v. McCoy, 590 S.W.2d 340, 1979 Ky. App. LEXIS 485 (Ky. Ct. App. 1979).

Where an appeal to the Circuit Court was not filed until more than four months from the date of the decision of the Workers’ Compensation Board, the appeal clearly exceeded the statutory time limits governing appeals and the appeal had to be dismissed. J. A. Jones Constr. Co. v. Carrico, 639 S.W.2d 377, 1982 Ky. App. LEXIS 247 (Ky. Ct. App. 1982), overruled, Jent v. Commonwealth, Natural Resources & Envtl. Protection Cabinet, 862 S.W.2d 318, 1993 Ky. LEXIS 123 ( Ky. 1993 ).

23. — Parties.

On petition for review of unfavorable award, respondents should be individual members of compensation board as opposed to Board as entity. Turner Day & Woolworth Handle Co. v. Pennington, 250 Ky. 433 , 63 S.W.2d 490, 1933 Ky. LEXIS 715 ( Ky. 1933 ).

Where, although the Board was not named as a party in the appeal to the Circuit Court, the Board’s original record was filed in the Circuit Court and all parties proceeded as if the board was a party, the claimed error of omission was not preserved for review. Tutor Key Coal Co. v. Daniel, 463 S.W.2d 932, 1971 Ky. LEXIS 598 ( Ky. 1971 ), limited, Thacker v. Republic Steel Corp., 484 S.W.2d 832, 1972 Ky. LEXIS 150 ( Ky. 1972 ).

On the appeal of a Board order to Circuit Court, the Board can in no sense be regarded as merely a nominal party. Scott Bros. Logging & Lumber Co. v. Cobb, 465 S.W.2d 241, 1971 Ky. LEXIS 438 ( Ky. 1971 ).

Where on appeal to the Circuit Court, the employer and the special fund joined themselves as petitioners against the employee and the Workers’ Compensation Board as respondents, the employer was in no position to assert as grounds for reversal the special fund’s failure to name the employer as an adverse party respondent as provided in this section. Queen City Dinette Co. v. Grant, 477 S.W.2d 808, 1972 Ky. LEXIS 372 ( Ky. 1972 ).

The definition of “appear” or “appearance,” in former subsection (4) of this section, is a coming into court as a party, not a mere corporal presence, by the giving of notice and the performance of some act. Yocom v. Hi-Flame Coals, Inc., 568 S.W.2d 757, 1978 Ky. App. LEXIS 552 (Ky. Ct. App. 1978).

Although subsection (1) prior to the 1987 amendment of this section only specifically requires that the Workers’ Compensation Board be made a party on appeals to the Circuit Court and there is no such requirement in further subsequent appeals, a notice of appeal pursuant to CR 73.03 which fails to name the Board as a party has omitted an indispensable party within CR 19.01 since the Board is frequently required to take further action which it cannot be required to do unless it is a party. Milligan v. Schenley Distillers, Inc., 584 S.W.2d 751, 1979 Ky. App. LEXIS 448 (Ky. Ct. App. 1979).

The appellate courts in this state require strict compliance with procedural rules in the filing of appeals from administrative bodies to circuit courts; accordingly, where the deceased employee’s survivors in their appeal to the Circuit Court from the Worker’s Compensation Board’s denial of their claim failed to name the Board as a party, the Circuit Court properly dismissed the appeal for failing to name the Board as a party defendant. Compton v. American Commercial Barge Line Co., 664 S.W.2d 950, 1984 Ky. App. LEXIS 472 (Ky. Ct. App. 1984).

Where the employer’s appeal is based upon the underlying entitlement of the claimant to an award, the special fund need not pursue a separate appeal on its own behalf in order to benefit from the success of the employer’s appeal. The special fund never suffers direct liability; it is only a source of funds for satisfaction of liability imposed upon the employer under given conditions. Holbert v. Wickes Lumber Supply, 683 S.W.2d 946, 1984 Ky. App. LEXIS 545 (Ky. Ct. App. 1984).

24. — — Intervention.

Where the defense, sought to be raised by the intervenor (the special fund), involved some common questions of fact with the main action, and the appellant had a contingent pecuniary interest in the subject of the appeal litigation, there was a basis for intervention in appeal for workers’ compensation award. Yocom v. Hi-Flame Coals, Inc., 568 S.W.2d 757, 1978 Ky. App. LEXIS 552 (Ky. Ct. App. 1978).

Where the net effect of the Board’s award imposed total or almost complete liability for the responsibility of payments upon the employer, the trial court’s refusal to dismiss the petition for a review on the ground that the special fund was an indispensable party was not clearly erroneous but denial of fund’s motion to intervene was prejudicial error. Yocom v. Hi-Flame Coals, Inc., 568 S.W.2d 757, 1978 Ky. App. LEXIS 552 (Ky. Ct. App. 1978).

25. — Summons.

A party desiring to have a review of an award of the Board in Circuit Court has not complied with the mandatory provisions of the law and saved his right of appeal in respect of time unless he has filed his petition and caused a summons to issue in good faith within 20 days after the rendition of the award. Blue Grass Mining Co. v. North, 265 Ky. 250 , 96 S.W.2d 757, 1936 Ky. LEXIS 470 ( Ky. 1936 ).

A summons issued by the clerk and delivered to the plaintiff or his attorney is not deemed to have been issued in good faith until it is given to the sheriff or other proper officer to be served. Blue Grass Mining Co. v. North, 265 Ky. 250 , 96 S.W.2d 757, 1936 Ky. LEXIS 470 ( Ky. 1936 ).

This section prior to the 1987 amendment, when read as a whole, means that the petition must be filed within the 20 days after the final order of the Board, but summons must be issued thereon within that time; otherwise, the very purpose of the law would be defeated by the delays which the appellant could work by failing to cause a summons to issue. Blue Grass Mining Co. v. North, 265 Ky. 250 , 96 S.W.2d 757, 1936 Ky. LEXIS 470 ( Ky. 1936 ).

In appeal from award of Board to Circuit Court where petition was filed within statutory time limit but process served on appellant was not delivered to sheriff’s office until approximately two months after order, Circuit Court did not err in overruling motion to dismiss petition for review where there was no showing that the appellee caused the delay. Blue Grass Mining Co. v. Stamper, 267 Ky. 643 , 103 S.W.2d 112, 1937 Ky. LEXIS 376 ( Ky. 1937 ).

Where summons on appeal from Workers’ Compensation Board is served upon the attorney general pursuant to RCr 3 and KRS 413.250 and there is no showing of “bad faith” in obtaining such service, the appeal should not be dismissed. Commonwealth, Dep't of Highways v. Parker, 394 S.W.2d 899, 1965 Ky. LEXIS 217 ( Ky. 1965 ).

26. — — Waiver.

The petition for appeal from an award or order of the board must be filed and summons issued thereon within 20 days after such award or order; however, the failure to issue summons may be waived by answering to the merits without motion to dismiss the appeal. Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262 , 204 S.W. 152, 1918 Ky. LEXIS 520 ( Ky. 1918 ).

Workers’ compensation claimant waived his right to object to late issuance of process in petition for review timely filed by the special fund when he filed an answer. Young v. Harris, 467 S.W.2d 588, 1971 Ky. LEXIS 387 ( Ky. 1971 ).

27. — Answer.

Where the special fund appealed to the Circuit Court from a determination of the Workers’ Compensation Board that the fund pay disability benefits to an employee afflicted with pneumoconiosis, the employee was required to file an answer within the time fixed by this section. Carnahan v. Yocom, 526 S.W.2d 301, 1975 Ky. LEXIS 96 ( Ky. 1975 ).

In the special fund’s appeal from an order of the Workers’ Compensation Board that the fund pay disability benefits to an employee, where the employee failed to answer the fund’s petition for review and made no effort to obtain a hearing or ruling on his motion to dismiss for failure to state a cause of action prior to the fund’s motion for a default judgment, employee’s motion was not properly made and did not toll the running of the time within which he was required to file an answer. Carnahan v. Yocom, 526 S.W.2d 301, 1975 Ky. LEXIS 96 ( Ky. 1975 ).

A respondent named in a petition for review upon appeal from an order of the Workers’ Compensation Board must file an answer within the time fixed by statute. Carnahan v. Yocom, 526 S.W.2d 301, 1975 Ky. LEXIS 96 ( Ky. 1975 ).

28. Remand.

Trial court may remand case to Board for further proof if facts are not satisfactorily developed. Broadway & Fourth Ave. Realty Co. v. Metcalfe, 230 Ky. 800 , 20 S.W.2d 988, 1929 Ky. LEXIS 181 ( Ky. 1929 ).

Where evidence did not support Board’s finding of total disability, court could not make a finding as to disability, but cause would be remanded for further determination. Kentucky Utilities Co. v. Hammons, 273 Ky. 375 , 116 S.W.2d 298, 1938 Ky. LEXIS 610 ( Ky. 1938 ); Kentucky Utilities Co. v. Hammons, 284 Ky. 437 , 145 S.W.2d 67, 1940 Ky. LEXIS 524 ( Ky. 1940 ).

In proper case trial court has right to remand to compensation board. Searcy v. Three Point Coal Co., 280 Ky. 683 , 134 S.W.2d 228, 1939 Ky. LEXIS 188 ( Ky. 1939 ).

Where the Board arbitrarily refuses to permit evidence to be introduced, the court may set aside the award and remand the case to enable a party to introduce his evidence. Searcy v. Three Point Coal Co., 280 Ky. 683 , 134 S.W.2d 228, 1939 Ky. LEXIS 188 ( Ky. 1939 ).

Circuit Court, on appeal from order of Board denying claim for compensation, has no authority to direct specifically what order the board shall enter but only to remand case to Board with directions to set aside its former order and render an award appropriate to the character of accident sustained. Black Motor Co. v. Spicer, 290 Ky. 111 , 160 S.W.2d 336, 1942 Ky. LEXIS 347 ( Ky. 1942 ).

In case involving application by dependents of deceased employee for death benefits where both parties had introduced all the evidence they desired and there was no other available evidence of any probative value, it was error for Circuit Court to remand case to board for further proof. The court should have examined the proof in the record and remanded the case to the Board with directions to enter a proper award as determined by the court. Kenmont Coal Co. v. Clark, 294 Ky. 226 , 171 S.W.2d 242, 1943 Ky. LEXIS 413 ( Ky. 1943 ).

A court, upon reaching the conclusion that the denial of the award was erroneous, should have remanded the case to the board for proceedings in conformity with its directions. Tyler-Couch Const. Co. v. Elmore, 264 S.W.2d 56, 1954 Ky. LEXIS 642 ( Ky. 1954 ).

If the Board’s finding is not substantiated by evidence of probative value, then its finding and the award based on it must be set aside on appeal and the cause remanded to the board for a proper determination. Lexington Cartage Co. v. Williams, 407 S.W.2d 395, 1966 Ky. LEXIS 151 ( Ky. 1966 ).

Where an employee failed to answer the special fund’s petition for review upon appeal from an order of the Workers’ Compensation Board that the fund pay disability benefits to the employee, the trial court did not abuse its discretion in granting default judgment in conformity with the pleadings of the fund and in remanding the proceeding to the Board for reconsideration of the fund’s motion to reopen on the ground of fraud. Carnahan v. Yocom, 526 S.W.2d 301, 1975 Ky. LEXIS 96 ( Ky. 1975 ).

Where employee’s application for adjustment, of claims was dismissed by the Workers’ Compensation Board without taking proof, the circuit judge, as well as the court of appeals, was fully justified in remanding the case to the Board for the taking of proof and in not disposing of the issue until the facts were fully explored by the Board. Browning Mfg. Div. v. Paulus, 539 S.W.2d 296, 1976 Ky. LEXIS 54 ( Ky. 1976 ).

When a reviewing Circuit Court determines that substantial evidence does not support the amount of occupational disability set by the Board, the court must remand the case to the Board, because the court does not have the authority to direct a specific disability award. Yocom v. Emerson Electric Co., 584 S.W.2d 744, 1979 Ky. App. LEXIS 446 (Ky. Ct. App. 1979).

Where the claimant was prohibited from filing a new motion to reopen with the Board while his appeal was pending, yet additional facts arose while the appeal was pending which very well might have affected the Board’s decision concerning the motion, the Circuit Court followed the most logical and expeditious procedure in that it declined to consider the new evidence on the merits and remanded the case back to the Board for such final resolution. Associated Pallet, Inc. v. Koon, 593 S.W.2d 878, 1979 Ky. App. LEXIS 508 (Ky. Ct. App. 1979).

The decision to remand under subsection (4) (now subsection (3)) of this section lies within the sound discretion of the trial court, and the reviewing court may reverse the trial court’s decision to remand only upon a finding that such action constituted an abuse of discretion; thus, where the basis for the trial court’s order remanding the claim to the Workers’ Compensation Board was due to its inability to determine whether the Board had relied upon the applicable law in formulating its original award, inasmuch as the formula for the computation of disability benefits contained in KRS 342.730 underwent significant revision since the time of the claimant’s injury, the trial court did not abuse its discretion. Wells v. Craddock, 683 S.W.2d 639, 1985 Ky. App. LEXIS 506 (Ky. Ct. App. 1985).

Kentucky Workers’ Compensation Board properly remanded a case to an administrative law judge (ALJ) for further findings relating to a 20% impairment rating under KRS 342.730(1), which was assigned by reference to the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), since a claimant was not using an assistive device. The Board was not requiring the ALJ to perform a medical analysis of the AMA Guides, but rather to support his decision with findings sufficient to ensure that the rating was made in accordance with the AMA Guides. Watkins v. Kobe Aluminum, 2013 Ky. App. LEXIS 70 (Ky. Ct. App. Apr. 19, 2013), aff'd, 2014 Ky. Unpub. LEXIS 60 (Ky. Aug. 21, 2014).

Opinion and award by an administrative law judge (ALJ), relative to any work-related right carpal tunnel syndrome (CTS) claimed by an employee for worker's compensation benefits, had to be vacated and remanded for further consideration because the ALJ's opinion lacked sufficient findings and analysis relative to the award of benefits for a work-related right CTS. Miller v. Go Hire Empl. Dev., Inc., 473 S.W.3d 621, 2015 Ky. App. LEXIS 143 (Ky. Ct. App. 2015).

Rather than reversing an award by an administrative law judge (ALJ) of permanent partial disability (PPD) income benefits, the Kentucky Worker's Compensation Board should have vacated and remanded the matter to the ALJ for further findings. If a compensable work-related carpal tunnel syndrome was established on remand, the ALJ was not precluded from awarding appropriate PPD benefits if justified by further factual findings. Miller v. Go Hire Empl. Dev., Inc., 473 S.W.3d 621, 2015 Ky. App. LEXIS 143 (Ky. Ct. App. 2015).

It was no error to vacate a 6% impairment rating without requiring a 15% rating on remand because remand was proper to reconsider the whole-body rating. Gregory v. A & G Tree Serv., 2018 Ky. App. LEXIS 79 (Ky. Ct. App.), sub. op., 2018 Ky. App. Unpub. LEXIS 971 (Ky. Ct. App. Feb. 16, 2018).

29. Review.

In setting up the system of industrial compensation, the legislature limited the power of the judiciary in its consideration of the evidence to determining whether the Board acted without or in excess of its power. Hendricks v. Kentucky & Virginia Leaf Tobacco Co., 312 Ky. 849 , 229 S.W.2d 953, 1950 Ky. LEXIS 769 ( Ky. 1950 ) (decision prior to 1960 amendment).

The sole function of courts, so far as questions of fact are concerned in a compensation case, is to determine whether or not the record contains any competent evidence of probative value upon which the findings of fact of the board may be supported. McDonald v. American Radiator & Standard Sanitary Corp., 237 S.W.2d 849, 1951 Ky. LEXIS 782 ( Ky. 1951 ).

This section provides that the case on review by the Circuit Court shall be determined solely upon the record considered by the Board. Bartley v. Bartley, 280 S.W.2d 549, 1955 Ky. LEXIS 186 ( Ky. 1955 ).

Review by the Circuit Court in such cases is limited to determining from the record whether the findings of fact support the order, decision, or award. Carrier v. Moberly, 315 S.W.2d 633, 1958 Ky. LEXIS 334 ( Ky. 1958 ).

It is not necessarily inconsistent for the Board to award payment of medical expenses without finding some extent of disability. Cavin v. Lake Constr. Co., 451 S.W.2d 159, 1970 Ky. LEXIS 378 ( Ky. 1970 ).

Where the employer had elected to operate under the Workers’ Compensation Act but on the last day of the exposure of the employee did not have workers’ compensation insurance coverage under a bona fide insurance policy nor had he complied as a self-insurer under the act, the special fund could be required to pay all or part of an award for the occupational disease of pneumoconiosis and/or silicosis. Young v. Young, 453 S.W.2d 277, 1970 Ky. LEXIS 305 ( Ky. 1970 ).

Where part of physicians’ testimony as to disability was based on case history related by the patient, and thus inadmissible, and part was based on the physicians’ own observations, findings were not set aside because there was enough legally competent evidence to permit the findings without the inadmissible evidence. Big Sandy Community Action Program v. Chaffins, 502 S.W.2d 526, 1973 Ky. LEXIS 79 ( Ky. 1973 ).

The decision of the Board was subject to judicial review under former subsection (3) of this section even though claimant filed no petition for reconsideration under subsection (1) as it read prior to the 1987 amendment of this section. Snawder v. Stice, 576 S.W.2d 276, 1979 Ky. App. LEXIS 369 (Ky. Ct. App. 1979).

If an appeal has already been taken from the Old Workers’ Compensation Board to the Circuit Court pursuant to this section prior to the date of its repeal, the Circuit Court has not lost jurisdiction to decide such a case, and such appeals shall continue to a decision in the Circuit Court in which they were filed; further, the Circuit Court’s decision shall be appealable to the Court of Appeals pursuant to Const., § 115. Jefferson County Bd. of Education v. Miller, 744 S.W.2d 751, 1988 Ky. App. LEXIS 24 (Ky. Ct. App. 1988).

A reviewing court, circuit or appellate, may not substitute its judgment for that of the Workers' Compensation Board. American Bakeries Co. v. Hatzell, 771 S.W.2d 333, 1989 Ky. LEXIS 53 ( Ky. 1989 ).

The Workers’ Compensation Board is entitled to the same deference for its appellate decisions as when the Supreme Court of Kentucky exercises discretionary review of Kentucky Court of Appeals decisions in cases that originate in Circuit Court. The function of further review of the Workers’ Compensation Board 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 the Supreme Court of Kentucky 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. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 1992 Ky. LEXIS 60 ( Ky. 1992 ).

Interlocutory appeals to the Workers’ Compensation Board are impermissible; thus board correctly dismissed appeal and denied claimant’s petition for prohibition. Reisinger v. Grayhawk Corp., 860 S.W.2d 788, 1993 Ky. App. LEXIS 114 (Ky. Ct. App. 1993).

The failure of the administrative law judge to render a decision within the 90-day time frame prescribed in 803 Kentucky Administrative Regulations 25:011 § 10(6)(a) did not render that decision a nullity and Workers’ Compensation Board’s denial of request for a new hearing and decision within the required time limit was affirmed. Bentley v. Aero Energy, 903 S.W.2d 912, 1995 Ky. App. LEXIS 138 (Ky. Ct. App. 1995).

Even assuming that an employer rebutted the presumption of causation of a claimant’s injury and reduced it to no more than a permissible inference, because other substantial evidence supported a finding of and that the claimant’s injury was work-related, via the testimony of the medical experts and the claimant herself, the finding of causation was reasonable. AK Steel Corp. v. Adkins, 253 S.W.3d 59, 2008 Ky. LEXIS 137 ( Ky. 2008 ).

Workers’ Compensation Board exceeded its authority by remanding a claim in order to provide the claimant with a second opportunity to meet his burden of proof. The claimant was not entitled to a second opportunity to prove his average weekly wage. Commonwealth v. Rogers, 396 S.W.3d 292, 2012 Ky. LEXIS 46 ( Ky. 2012 ).

In a workers’ compensation case, the Kentucky Workers’ Compensation Board did not substitute its judgment for that of the administrative law judge (ALJ) or reweigh the evidence presented in violation of KRS 342.285(2); the Board did not direct a finding that a claimant was concurrently employed at the time of a work-related injury. In remanding, the Board merely directed the ALJ to consider the evidence presented and make findings thereon; because the opinion and award from the ALJ did not recite any evidence to support the ALJ’s determination, a remand was necessary for further findings on the issue of concurrent wages. Pro Servs. v. Wilson, 391 S.W.3d 382, 2013 Ky. App. LEXIS 3 (Ky. Ct. App. 2013).

When a subcontractor appealed an administrative law judge’s (ALJ) decision after the ALJ denied a worker’s second motion for reconsideration, it was error to dismiss the appeal as untimely because, (1) once the worker filed the second motion, the finality of the ALJ’s decision was stayed and the time to appeal was tolled, and (2) the fact that the worker’s motion did not raise a new claim of error did not require a different result, as it was unfair to place the burden of guessing the validity of the worker’s motion on the subcontractor. Uninsured Employers' Fund v. Stanford, 399 S.W.3d 26, 2013 Ky. LEXIS 37 ( Ky. 2013 ).

Subcontractor’s failure to move for reconsideration of an administrative law judge’s (ALJ) factual findings was not fatal to the subcontractor’s appeal of the ALJ’s decision because the appeal primarily concerned the manner in which the ALJ applied the law to those findings. Uninsured Employers' Fund v. Stanford, 399 S.W.3d 26, 2013 Ky. LEXIS 37 ( Ky. 2013 ).

In a workers’ compensation case relating to death benefits, an administrative law judge’s (ALJ) findings were sufficient to support an award where the ALJ relied on recorded statements in finding that an employee was murdered during a robbery. The ALJ did not have to reiterate in the opinion, in detail, the exact statements from which the opinion was formulated; the findings as to what took place on the day in question were not clearly erroneous and were not disturbed. JJ's Smoke Shop, Inc. v. Walker, 2013 Ky. App. LEXIS 22 (Ky. Ct. App. Feb. 1, 2013), rev'd, 2014 Ky. Unpub. LEXIS 40 (Ky. June 19, 2014).

30. — Prerequisites.

On the appeal of an award where the record did not contain a motion or any pleading requesting the Circuit Court to enter a money judgment and the employer, therefore, having had no opportunity to object prior to the rendition of the judgment, a motion to alter, amend or vacate the judgment, although permissible, was not a prerequisite to appeal. Queen City Dinette Co. v. Grant, 477 S.W.2d 808, 1972 Ky. LEXIS 372 ( Ky. 1972 ).

Any decision of the Old Workers’ Compensation Board (as it was constituted prior to January 4, 1988) may be appealed to the new Workers’ Compensation Board pursuant to this section; only after the new board has rendered a decision may further review be sought in the Court of Appeals pursuant to CR 76.25. Jefferson County Bd. of Education v. Miller, 744 S.W.2d 751, 1988 Ky. App. LEXIS 24 (Ky. Ct. App. 1988).

31. — Questions of Fact.

Rule that where substantial evidence supports Board’s finding, court will not disturb it is just as applicable when decision is adverse to employee as to employer. Horn Transfer Line v. Reed, 287 Ky. 536 , 154 S.W.2d 344, 1941 Ky. LEXIS 580 ( Ky. 1941 ). See Yeager v. Mengal Co., 260 Ky. 156 , 84 S.W.2d 6, 1935 Ky. LEXIS 422 ( Ky. 1935 ).

In order for the findings of fact by the Board to be given conclusive effect, the evidence heard before it must be something of substance and relevant consequence and not vague, uncertain, or irrelevant matter not carrying the quality of proof or having fitness to induce conviction. Clear Branch Mining Co. v. Holbrook, 247 S.W.2d 48, 1953 Ky. LEXIS 578 ( Ky. 1953 ).

Where the testimony, medical and lay, introduced by the claimant was in direct conflict with that produced by the employer with reference to cause of employee’s death, the findings of the Workers’ Compensation Board would not be disturbed by the court as there was substantial evidence adduced to support its findings. Mengel Co. v. Lehman, 259 S.W.2d 19, 1953 Ky. LEXIS 906 ( Ky. 1953 ).

The function of the courts as to the facts is to review the record to determine whether or not the finding by the Board is supported by any evidence of probative value. Tyler-Couch Const. Co. v. Elmore, 264 S.W.2d 56, 1954 Ky. LEXIS 642 ( Ky. 1954 ).

So far as the findings of fact are concerned, the sole function of the court that reviews the case is to ascertain whether the record discloses any competent evidence of probative value to support the findings of fact of the Board. Abbott v. Grissom-Rakestraw Lumber Co., 279 S.W.2d 227, 1955 Ky. LEXIS 511 ( Ky. 1955 ).

On questions of fact, the court’s judgment cannot be substituted for that of the Board if the latter is supported by substantial evidence of probative value. Rowland v. Geary-Wright Tobacco Co., 344 S.W.2d 824, 1961 Ky. LEXIS 258 ( Ky. 1961 ).

Where medical report supported award of the board, it was impermissible for the Circuit Court to substitute its judgment on issues of fact. Young v. Gardner Oldsmobile, 464 S.W.2d 802, 1971 Ky. LEXIS 498 ( Ky. 1971 ).

It was clearly erroneous for the Circuit Court, upon review of the board’s opinion and award, to make its own specific findings of fact and thereby substitute itself for the Board as the finder of fact. McCracken County Health Spa v. Henson, 568 S.W.2d 240, 1977 Ky. App. LEXIS 920 (Ky. Ct. App. 1977).

When there has been no award or the award is deemed insufficient, the claimant, on appeal, must show that the evidence was so overwhelming as to compel a finding of the degree of disability to which he claims entitlement; in reviewing the evidence, the court may not substitute its judgment for that of the board as to the weight of evidence upon questions of fact. Stovall v. Collett, 671 S.W.2d 256, 1984 Ky. App. LEXIS 524 (Ky. Ct. App. 1984).

The determination of whether the failure to follow medical advice is unreasonable is a question of fact for the administrative law judge (ALJ), who has the sole authority to determine the weight and sufficiency of the evidence. Luttrell v. Cardinal Aluminum Co., 909 S.W.2d 334, 1995 Ky. App. LEXIS 181 (Ky. Ct. App. 1995).

An administrative law judge’s determination that the claim was timely filed was supported by substantial evidence; medical causation had to be proved to a reasonable medical probability with expert medical testimony, but KRS 342.0011(1) did not require it to be proved with objective medical findings, and the opinion on which the ALJ relied was reasonable and well documented. Univ. of Ky. Family Practice v. Leach, 2006 Ky. App. LEXIS 389 (Ky. Ct. App. Dec. 22, 2006), aff'd, 237 S.W.3d 540, 2007 Ky. LEXIS 214 ( Ky. 2007 ).

Under KRS 342.285 , an Administrative Law Judge’s decision is conclusive and binding as to all questions of fact and the Board must not substitute its judgment for that of the ALJ as to the weight of evidence on questions of fact. When evidence is conflicting, it is within the exclusive province of the ALJ to determine what to believe and what to reject. Wal-Mart Stores, Inc. v. Smith, 277 S.W.3d 610, 2008 Ky. App. LEXIS 189 (Ky. Ct. App. 2008).

Reversal of prior dispositive factual findings rendered by an administrative law judge (ALJ) in an interlocutory opinion, absent introduction of new evidence, fraud, or mistake, is arbitrary, unreasonable, unfair, and unsupported by sound legal principles; in such instances, the ALJ exceeds the exercise of reasonable discretion, operates outside the bounds of statutory authority, and must be reversed. Bowerman v. Black Equip. Co., 297 S.W.3d 858, 2009 Ky. App. LEXIS 189 (Ky. Ct. App. 2009).

32. — Scope.

Where Board’s finding is supported by evidence of probative value, it is conclusive and binding as to all questions of fact. Mills v. Casner, 296 Ky. 678 , 178 S.W.2d 196, 1944 Ky. LEXIS 607 ( Ky. 1944 ).

Judicial review of the findings of fact by the Board is limited to determining whether there is any evidence of probative value to support the findings. Hendricks v. Kentucky & Virginia Leaf Tobacco Co., 312 Ky. 849 , 229 S.W.2d 953, 1950 Ky. LEXIS 769 ( Ky. 1950 ) (decision prior to 1960 amendment).

When findings of fact are in issue, the Circuit Court is limited to a summary determination upon the record before the Board of whether such findings of fact are based on competent evidence of probative value to support the order, decision, or award. Altizer v. Casey, 330 S.W.2d 730, 1959 Ky. LEXIS 204 ( Ky. 1959 ).

A review by the courts will be limited to determining whether there was any substantial evidence of probative value to support the finding of fact by the Board. State Highway Dep't v. Hopwood, 331 S.W.2d 900, 1960 Ky. LEXIS 138 ( Ky. 1960 ).

Where there is a conflict in the evidence in a compensation proceeding, the sole function of the Circuit Court and of the Court of Appeals is to ascertain whether the record discloses any competent evidence of probative value which supports the findings of fact of the Board. Huddleston v. Collins & Peace Coal Co., 335 S.W.2d 929, 1960 Ky. LEXIS 301 ( Ky. 1960 ).

On a joint petition to the Circuit Court filed by the employer and special fund for review of an award of the Workers’ Compensation Board, the court did not have the prerogative to translate the award of the Board into a money judgment. Queen City Dinette Co. v. Grant, 477 S.W.2d 808, 1972 Ky. LEXIS 372 ( Ky. 1972 ).

If the Board finds in favor of the party having the burden of proof, the only question on appeal is whether the Board’s findings are supported by substantial evidence. Kentland Elkhorn Coal Co. v. Johnson, 549 S.W.2d 308, 1977 Ky. App. LEXIS 659 (Ky. Ct. App. 1977).

Circuit Court exceeded its authority in directing specifically the award which the Board should render. Yocom v. Conley, 554 S.W.2d 416, 1977 Ky. App. LEXIS 768 (Ky. Ct. App. 1977).

A Circuit Court does not have the authority to direct the Workers’ Compensation Board to find that an employee has sustained a specific degree of disability. United Pipeline Constr. Co. v. Kaelin, 602 S.W.2d 176, 1980 Ky. App. LEXIS 337 (Ky. Ct. App. 1980).

Where Compensation Board found employee to be 25 percent occupationally disabled and where there was some evidence that the claimant was unable to work subsequent to the injury and other evidence that he was only partially disabled, the Circuit Court erred in refusing to be bound by findings of the Board that were supported by substantial evidence. United Pipeline Constr. Co. v. Kaelin, 602 S.W.2d 176, 1980 Ky. App. LEXIS 337 (Ky. Ct. App. 1980).

If a claimant succeeds in his burden of proof and an adverse party appeals to the Circuit Court, the question before the court is whether the decision of the Board is supported by substantial evidence; on the other hand, if the claimant is unsuccessful before the Board, and he himself appeals to the Circuit Court, the question before the court is whether the evidence was so overwhelming, upon consideration of the entire record, as to have compelled a finding in his favor. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 1984 Ky. App. LEXIS 550 (Ky. Ct. App. 1984).

The authority of the Circuit Court, under this section, is to review the Board’s decision in a “summary manner.” It may be appropriate, and even desirable, for the court to articulate the basis of its decision, but it is never appropriate to render findings and conclusions upon the evidence before the Board, or to direct that any specific finding be made by the Board. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 1984 Ky. App. LEXIS 550 (Ky. Ct. App. 1984).

A finding for the claimant by the Workers’ Compensation Board will not be disturbed on appeal to either the Circuit Court or an appellate court if there is any substantive evidence of probative value to support it. Woolum v. Woolum, 684 S.W.2d 20, 1984 Ky. App. LEXIS 571 (Ky. Ct. App. 1984).

The Circuit Court has no power to make its own findings of fact or to direct the Workers’ Compensation Board to find any specific degree of disability. Wells v. Hobart Corp., 708 S.W.2d 112, 1986 Ky. App. LEXIS 1054 (Ky. Ct. App. 1986).

When considering an appeal following a reopening, the “new” Workers’ Compensation Board did not exceed its authority by considering sua sponte a substantial error in the calculation of the initial award and by directing the administrative law judge to enter an award at reopening which was based upon a correct computation of the weekly benefit for the claimant’s entire compensable occupational disability, with credit to the defendants in the amount of the overlapping benefits awarded by the “old” board. Whittaker v. Reeder, 2000 Ky. LEXIS 93 (Ky. Aug. 24, 2000), sub. op., 30 S.W.3d 138, 2000 Ky. LEXIS 137 ( Ky. 2000 ).

The Workers’ Compensation Board was authorized to determine that an award which was entered at reopening did not conform to Chapter 342, regardless of whether the particular error in applying the law which caused the board to reach that conclusion was contested by a party and regardless of whether the initial award was appealed on a different ground. Whittaker v. Reeder, 30 S.W.3d 138, 2000 Ky. LEXIS 137 ( Ky. 2000 ).

33. — — Limitations.

Although right of appeal from an award by the Compensation Board lies to the Circuit Court, such court did not have jurisdiction to enter a judgment based on a compromise between employer and employee which was never approved by the Board. Workmen's Compensation Board v. Abbott, 212 Ky. 123 , 278 S.W. 533, 1925 Ky. LEXIS 1088 ( Ky. 1925 ).

Whether the parties were under the compensation law cannot be raised for the first time in the Circuit Court or the Court of Appeals. Harvey Coal Corp. v. Morris, 314 Ky. 781 , 237 S.W.2d 70, 1951 Ky. LEXIS 751 ( Ky. 1951 ).

The Circuit Court is limited to a summary determination upon the record before the Board, when findings of fact are at issue, as to whether such findings of fact are based on competent evidence of probative value to support the order, decision or award. Inland Steel Co. v. Mullins, 367 S.W.2d 250, 1963 Ky. LEXIS 15 ( Ky. 1963 ).

Where it is contended that there is no competent, reliable, and material evidence to support the Board’s finding, the scope of review is limited to whether the “order, decision, or award is clearly erroneous,” under subsection (3)(d) (now (2)(d)) of this section. Watts & Williams Drilling Co. v. Slone, 437 S.W.2d 723, 1969 Ky. LEXIS 446 ( Ky. 1969 ).

Where the Board awarded 60% permanent partial disability as a result of claimant’s combined injuries and the Circuit Court reversed the Board and entered its judgment awarding total permanent disability, the Circuit Court exceeded its authority in substituting its finding of fact for that of the Workers' Compensation Board. Vecellio & Grogan, Inc. v. Crumley, 484 S.W.2d 866, 1972 Ky. LEXIS 162 ( Ky. 1972 ).

In order to reverse findings of the Workers’ Compensation Board unfavorable to the claimant and upon which he had the burden of proof, the test is whether the evidence compelled a finding in the claimant’s favor. Special Fund v. Francis, 708 S.W.2d 641, 1986 Ky. LEXIS 263 ( Ky. 1986 ).

34. —Matter of Law.

Even finding by Board on undisputed facts was subject to judicial review with respect to whether such finding conformed to law. Hazelwood v. Standard Sanitary Mfg. Co., 208 Ky. 618 , 271 S.W. 687, 1925 Ky. LEXIS 348 ( Ky. 1925 ).

There being no issue of fact or where facts are undisputed, there remains only question of law for judicial review. Billiter, Miller & McClure v. Hickman, 247 Ky. 211 , 56 S.W.2d 1003, 1933 Ky. LEXIS 377 ( Ky. 1933 ). See Calloway v. Octavia J. Coal Mining Co., 271 Ky. 8 , 111 S.W.2d 395, 1937 Ky. LEXIS 179 ( Ky. 1937 ).

Where essential facts in case were not disputed and finding of compensation board was erroneous application of law to facts, such finding was reviewable on appeal. W. T. Congleton Co. v. Bradley, 259 Ky. 127 , 81 S.W.2d 912, 1935 Ky. LEXIS 271 ( Ky. 1935 ).

Where evidence was all one way and showed that employer voluntarily made excess payment without any agreement with employee, only question presented was one of law as to whether excess could be credited against compensation, and such question was subject to judicial review. Blue Grass Mining Co. v. Stamper, 267 Ky. 643 , 103 S.W.2d 112, 1937 Ky. LEXIS 376 ( Ky. 1937 ).

Where there was no dispute as to facts of employment contract, whether person was employee or independent contractor was question of law which would be reviewed by Court of Appeals. Aetna Casualty & Surety Co. v. Petty, 282 Ky. 716 , 140 S.W.2d 397, 1940 Ky. LEXIS 259 ( Ky. 1940 ). But see Ruth Bros. v. Roberts, 270 Ky. 339 , 109 S.W.2d 800, 1937 Ky. LEXIS 79 ( Ky. 1937 ).

The substantial evidence test of review of findings of Workers’ Compensation Board by the Circuit Court pertains to questions of fact, not questions of law; the construction and effect to be given to the agreement between the employer’s workers’ compensation insurer and administrator of employee’s estate, in light of KRS 342.700 , was a legal question, and erroneous application of the law by the Board and the Circuit Court was reviewable by the Court of Appeal. Brown v. YWCA, 729 S.W.2d 190, 1987 Ky. App. LEXIS 479 (Ky. Ct. App. 1987).

35. — —Evidence.

Evidence always is defined as competent testimony of relevance and substance proving and tending to prove a fact or to induce a conviction of the existence of a state of fact. George T. Stagg Co. v. O'Nan, 286 Ky. 527 , 151 S.W.2d 51, 1941 Ky. LEXIS 284 ( Ky. 1941 ).

Where the evidence consistently showed that the claimant had a preexisting disease that was caused to become disabling by a work-connected injury, the Circuit Court, on appeal, was not in error in setting aside the judgment of the board and ruling that this was a compensable injury as a matter of law. Cabe v. Bush, 424 S.W.2d 585, 1968 Ky. LEXIS 462 ( Ky. 1968 ).

Where the employee died from a coronary occlusion shortly after using a sledge hammer in the course of his employment, the evidence did not force the Board as a matter of law to find that the employee’s work contributed to his death. Inland Steel Co. v. Johnson, 439 S.W.2d 562, 1969 Ky. LEXIS 372 ( Ky. 1969 ).

Where, after the claimant and his wife separated, the wife changed her testimony so that it became unfavorable to the claimant, the credibility of her evidence and what part of it should be believed were questions for the Board, not for the Circuit Court. Pittsburg & Midway Coal Mining Co. v. Rushing, 456 S.W.2d 816, 1969 Ky. LEXIS 4 ( Ky. 1969 ).

Where the evidence, both pro and con, on causation was not sufficiently strong and unequivocal to force a checkmate, the board was not required to find that the claimant was totally and permanently disabled as the result of a work-connected injury which “lighted up” a preexisting but theretofore nondisabling disease condition of the spine. Cavin v. Lake Constr. Co., 451 S.W.2d 159, 1970 Ky. LEXIS 378 ( Ky. 1970 ).

Although the award made by the board was conservative, there was substantial evidence to support it and the Circuit Court could therefore not disturb it. Floyd County Board of Education v. Jacobs, 451 S.W.2d 405, 1970 Ky. LEXIS 389 ( Ky. 1970 ).

Where the evidence indicated that a claimant suffered from several allergies which prevented him from working in jobs which exposed him to certain fumes, but did not prevent him from working in other jobs, the trial court properly concluded that the Board’s finding of a 50 percent permanent partial disability was clearly erroneous. Golden v. Anaconda Wire & Cable Co., 556 S.W.2d 174, 1977 Ky. App. LEXIS 814 (Ky. Ct. App. 1977).

Where medical evidence indicated that claimant was unable to do any heavy work whatsoever and two of the four doctor witnesses testified that he was totally disabled, the board’s finding of total disability would not be disturbed. Allied Corp. v. Hornsby, 661 S.W.2d 480, 1983 Ky. App. LEXIS 350 (Ky. Ct. App. 1983).

Employee clearly bore the burden of proving by competent evidence all facts necessary to establish Kentucky jurisdiction for his claim. When the administrative law judge (ALJ) concluded that Kentucky jurisdiction was disallowed by statute, the Worker’s Compensation Board on review could only reverse the ALJ by determining his findings to be clearly erroneous, and holding that the evidence was so overwhelming, upon consideration of the record as a whole, that it compelled a finding in employee’s favor. Upon a review of the record, it was clear that the ALJ’s findings were consonant with the evidence presented to him. It was indisputably the case that employer assigned employee to work from employer’s place of business in Chattanooga, Tennessee, for the one and one-half years prior to his accident. Employer received substantially all his work orders from Chattanooga, and was in fact in Tennessee when the accident in question occurred. Under these circumstances, the ALJ’s finding that employer worked “from” Tennessee for statutory purposes was certainly supported by “reliable, probative, and material evidence.” ECK Miller Transp. Corp. v. Wagers, 833 S.W.2d 854, 1992 Ky. App. LEXIS 159 (Ky. Ct. App. 1992).

Employer did not put on sufficient evidence to allow the ALJ to order Special Fund to begin payment of benefits on occupational disease claim where there was an absence of proof as to whether employer was self-insured and whether its liability had been discharged in bankruptcy proceeding and where the only evidence employer submitted (the documents filed with its motion before the Board) was not properly admitted. Newberg v. Jent, 867 S.W.2d 207, 1993 Ky. App. LEXIS 171 (Ky. Ct. App. 1993).

Administrative Law Judge (ALJ) properly determined that a worker’s scheduling conflicts did not form a basis to extend his time for proof with regard to his disability claim as scheduling difficulties were not sufficient cause for an extension under the standards set forth in 803 KAR 25:010. Therefore, the decision of the Workers’ Compensation Board that reversed the denial of the worker’s motion to extend time was in error. Butler's Fleet Serv. v. Martin, 173 S.W.3d 628, 2005 Ky. App. LEXIS 203 (Ky. Ct. App. 2005).

Kentucky Workers’ Compensation Board (Board) properly applied the controlling law to the facts and found that the ALJ’s ruling was in error, KRS 342.285 ; the Board properly found that the worker was not engaged in a roofing business independent of his work for the employer at the time of his injury, and the work performed was part of the regular business of the employer. Steinrock v. Cook, 2010 Ky. App. LEXIS 229 (Ky. Ct. App. Dec. 10, 2010), aff'd, 2011 Ky. Unpub. LEXIS 74 (Ky. Aug. 25, 2011).

Board was authorized pursuant to KRS 342.285 and KRS 342.290 to overrule the administrative law judge’s finding that the employee was not entitled to KRS 342.020(1) future medical benefits for a shoulder injury that the employee sustained while working for the employer, despite the fact that the employee seemed to have healed after undergoing surgery. Under KRS 342.020(1), the employee was entitled to reasonable and necessary medical treatment at the time of the injury and thereafter during disability, assuming the employee could show disability, without regard to the duration of income benefits. Kroger v. Ligon, 338 S.W.3d 269, 2011 Ky. LEXIS 68 ( Ky. 2011 ).

36. — — —New or Additional.

Where it is not claimed that anyone engaged in the administration of workers’ compensation law was guilty of fraud or misconduct, no new or additional evidence may be introduced on appeal. Nelson v. Kentucky River Stone & Sand Co., 182 Ky. 317 , 206 S.W. 473, 1918 Ky. LEXIS 357 ( Ky. 1918 ).

In the absence of fraud or misconduct on the part of the members, or some of them, of the Workers’ Compensation Board, the only evidence that may be heard by the Circuit Court, on an appeal from an award of the Board, is the evidence heard by the Board. McCune v. Wm. B. Pell & Bro., 192 Ky. 22 , 232 S.W. 43, 1921 Ky. LEXIS 4 ( Ky. 1921 ).

On appeal to the Circuit Court from an award of the Compensation Board, the only new or additional evidence that may be introduced is that of fraud or misconduct appearing outside the record and, where no record was brought to the court from the Board, no such facts could be considered. Hawley-McIsaacs Coal Co. v. Grant, 235 Ky. 650 , 32 S.W.2d 35, 1930 Ky. LEXIS 444 ( Ky. 1930 ).

In review of findings of Board by Circuit Court, no new or additional evidence may be introduced except as to the fraud or mistake of some person engaged in the administration of the law and affecting the Board’s finding. Mills v. Casner, 296 Ky. 678 , 178 S.W.2d 196, 1944 Ky. LEXIS 607 ( Ky. 1944 ).

The Workers’ Compensation Board erred in taking judicial notice of employer’s bankruptcy petition in determining whether the Special Fund should begin payment of benefits on occupational disease claim where bankruptcy petition constituted new or additional evidence unrelated to fraud or misconduct of some person engaged in the administration of this chapter. Newberg v. Jent, 867 S.W.2d 207, 1993 Ky. App. LEXIS 171 (Ky. Ct. App. 1993).

37. — — —Weight and Sufficiency.

It is the province of the Compensation Board to determine the weight and sufficiency of the evidence. Black Star Coal Co. v. Hall, 257 Ky. 481 , 78 S.W.2d 343, 1935 Ky. LEXIS 44 ( Ky. 1935 ). See Agsten v. Brown-Williamson Tobacco Corp., 272 Ky. 20 , 113 S.W.2d 829, 1938 Ky. LEXIS 73 ( Ky. 1938 ).

The Board is vested with the final power to determine the weight to given relevant evidence. Consolidation Coal Co. v. Mills, 296 Ky. 151 , 176 S.W.2d 278, 1943 Ky. LEXIS 125 ( Ky. 1943 ).

In proceedings to obtain compensation for injuries sustained by employee when attempting to extinguish fire in open gasoline can, injured employee’s testimony that fire was started by sparks from an emery wheel or pistons striking together and that he did not throw a match into the can was sufficient to support board’s finding that accident was not a result of wilful misconduct notwithstanding testimony of two co-workers that he did throw a lighted match into the can. C. Lee Cook Mfg. Co. v. Hodges, 304 Ky. 9 , 199 S.W.2d 635, 1946 Ky. LEXIS 929 ( Ky. 1946 ).

No court is authorized to determine the weight to be given to the evidence. McDonald v. American Radiator & Standard Sanitary Corp., 237 S.W.2d 849, 1951 Ky. LEXIS 782 ( Ky. 1951 ).

Where the Board found that the claimant suffered just one injury rather than two as the employer claimed and the board’s decision and award were supported by reliable, probative and material evidence, it was not “clearly erroneous” and could not be set aside on appeal to the Circuit Court. Young v. Mill Branch Mining Co., 435 S.W.2d 451, 1968 Ky. LEXIS 206 ( Ky. 1968 ).

In order for the Circuit Court to set aside a final order of the Workers’ Compensation Board, it must be shown that the evidence before the Board was of such persuasive force that it was clearly unreasonable for the Board not to be convinced by it. Inland Steel Co. v. Johnson, 439 S.W.2d 562, 1969 Ky. LEXIS 372 ( Ky. 1969 ).

Neither the Circuit Court nor the Court of Appeals has the authority to overturn the factual finding of the Board unless it may be said that the Board’s finding is clearly erroneous on the basis of reliable, probative, and material evidence contained in the whole record. Parks v. Beth-Elkhorn Corp., 442 S.W.2d 589, 1969 Ky. LEXIS 279 ( Ky. 1969 ).

Where it was manifest from the record that the evidence in behalf of the claimant was not so conclusive or overwhelming as to require the Board to find in his favor, the Board’s finding against the claimant could not be disturbed. Parks v. Beth-Elkhorn Corp., 442 S.W.2d 589, 1969 Ky. LEXIS 279 ( Ky. 1969 ).

Where the Board had substantial evidence of probative value to sustain its finding that the employing partnership had not been dissolved and that the claimant was thus covered by the compensation insurance of the partnership, the Circuit Court erred in finding to the contrary. Murphy v. Aetna Casualty & Surety Co., 445 S.W.2d 695, 1969 Ky. LEXIS 174 ( Ky. 1969 ).

A finding by the Workers’ Compensation Board that a claimant is totally disabled is clearly erroneous where there is no evidence that the claimant is not capable of performing any kind of work of regular employment and there is no showing that regular employment in the kind of work she can perform is unavailable in the local labor market. Queen City Dinettes, Inc. v. Bowling, 472 S.W.2d 72, 1971 Ky. LEXIS 177 ( Ky. 1971 ).

Court erred where it reversed award of total disability for lack of substantial evidence and remanded to consider only medical evidence because the Board may consider lay testimony as to the extent of disability after it forms a conclusion as to whether the bodily injury exists based on medical testimony. Walker v. Porter Product Finishers, Div. of Porter Paint Co., 505 S.W.2d 178, 1974 Ky. LEXIS 770 ( Ky. 1974 ).

Former subdivision (3)(d) relating to the required quality and sufficiency of the evidence to support an award is basically the same rule applied to jury findings in civil cases and workers’ compensation cases are governed by the “substantial evidence” rule to determine whether or not a finding is clearly erroneous. Golden v. Anaconda Wire & Cable Co., 556 S.W.2d 174, 1977 Ky. App. LEXIS 814 (Ky. Ct. App. 1977).

While the Workers’ Compensation Board, as a fact finder, is supreme within its own area to pass upon the weight of the evidence when substantial evidence is before it, the court is the final authority as to what constitutes “substantial evidence” as it applies the judicial test of quality, sufficiency and fitness of the evidence as a whole to induce conviction in the minds of reasonable men. Golden v. Anaconda Wire & Cable Co., 556 S.W.2d 174, 1977 Ky. App. LEXIS 814 (Ky. Ct. App. 1977).

Where the Circuit Court, on the basis of uncontradicted evidence that a claimant planned his accident as a scheme to make money, reversed an award by the Board, the Circuit Court did not weigh the evidence but merely determined the legal effect of the uncontradicted proof and such action was proper where the Board stated no reason for rejecting that proof. Collins v. Castleton Farms, Inc., 560 S.W.2d 830, 1977 Ky. App. LEXIS 887 (Ky. Ct. App. 1977).

Where there was conflicting medical testimony as to the percentage of functional disability attributable to one of two injuries, the Board’s finding that the claimant was only 30% disabled by such injury and that only part of his loss of earnings was attributable thereto was based on substantial evidence and could not be set aside. Kentucky Carbon Corp. v. Dotson, 573 S.W.2d 368, 1978 Ky. App. LEXIS 612 (Ky. Ct. App. 1978).

Where the record was devoid of any evidence that the claimant was ever exposed to any hazard known to cause the disease from which he suffered except at his last place of employment, the Board’s finding that the claimant was exposed in more than one employment was clearly erroneous; thus, the Board erred when it apportioned the disability award and held the special fund liable for 75% of the award and the employer liable for 25% thereof. Stovall v. Mullen, 674 S.W.2d 526, 1984 Ky. App. LEXIS 552 (Ky. Ct. App. 1984).

Where the record contained overwhelming evidence that the employee suffered some degree of occupational disability, the Workers’ Compensation Board’s dismissal of the employee’s claim for permanent occupational disability benefits was so arbitrary and capricious as to require a reversal. Wells v. Hobart Corp., 708 S.W.2d 112, 1986 Ky. App. LEXIS 1054 (Ky. Ct. App. 1986).

Although the employer rebutted the presumption that a claimant’s unexplained work-place fall was work-related by physicians’ opinions suggesting the claimant had an episode of presyncope, there remained a permissible inference that the fall was work-related. This inference, plus the administrative law judge’s finding that the fall was not due to presyncope, syncope, or loss of consciousness and was not idiopathic, constituted substantial evidence that the fall arose out of the claimant’s employment. Jefferson County Pub. Sch. v. Stephens, 208 S.W.3d 862, 2006 Ky. LEXIS 337 ( Ky. 2006 ).

Workers’ Compensation Board erred in affirming the ALJ’s denial of benefits to an employee for an allegedly work-related neck injury where the ALJ relied on a medical expert’s report that began with an assumption that the employee must have exaggerated his symptoms and lied regarding both of his work accidents, and the expert failed to consider the independent medical examination in the record or the employee’s statements regarding the failure to mention the neck injury until he sought treatment for a second injury. Taylor v. McCoy Elkhorn Coal Corp., 2018 Ky. App. LEXIS 207 (Ky. Ct. App. July 27, 2018), rev'd, 2019 Ky. Unpub. LEXIS 50 (Ky. June 13, 2019).

Employee’s appeal of an order affirming the denial of benefits for a knee injury and two back surgeries need not be dismissed because the issues of whether substantial evidence supported the Administrative Law Judge’s findings and whether the evidence would compel a different result were questions of law that the supreme court could, and must, address. Wilkerson v. Kimball Int'l, Inc., 585 S.W.3d 231, 2019 Ky. LEXIS 373 ( Ky. 2019 ).

38. — — — Circumstantial.

Circumstantial evidence is sufficient to support the finding of the Board. Raymond Contracting Co. v. Little, 255 Ky. 461 , 74 S.W.2d 926, 1934 Ky. LEXIS 262 ( Ky. 1934 ).

Evidence of alleged facts inherently impossible and at variance with physical, mechanical and scientific laws is not “evidence” within the meaning of the law requiring evidence of some probative value to justify the finding of the Workers' Compensation Board. Pioneer Coal Co. v. Lisenbee, 276 Ky. 308 , 124 S.W.2d 94, 1939 Ky. LEXIS 523 ( Ky. 1939 ).

The term “evidence” means something of substance and relevant consequence and not vague, uncertain or irrelevant matter not carrying the quality of proof or having fitness to induce conviction. Old King Min. Co. v. Messer, 252 S.W.2d 863, 1952 Ky. LEXIS 1027 ( Ky. 1952 ).

39. — — —Medical Testimony.

Attending physician’s testimony that employee’s death, while turning a “bender” used in bending mine car rails, as a result of a cerebral hemorrhage was caused by high blood pressure was sufficient to support Board’s denial of compensation based on finding that the hemorrhage resulted solely from a preexisting disease, not a traumatic injury, though employee had never lost time from illness or required the services of a doctor, and there was testimony that the hemorrhage was due to strain from operating “bender.” Blue Diamond Coal Co. v. Whitaker, 303 Ky. 716 , 198 S.W.2d 792, 1946 Ky. LEXIS 919 ( Ky. 1946 ).

Where the competent evidence in a workers’ compensation hearing cast no doubts on the medical opinion of two doctors as to the cause of death, their opinions as to the cause of death must be accepted by the Board and a finding to the contrary was clearly erroneous. Watts & Williams Drilling Co. v. Slone, 437 S.W.2d 723, 1969 Ky. LEXIS 446 ( Ky. 1969 ).

Where medical evidence was clear and convincing and unanimous in establishing permanent disability by reason of compensable occupational disease, award of 35% permanent partial disability was erroneous notwithstanding that other noncompensable conditions may be involved in the disability. Young v. Phelps Collieries Co., 439 S.W.2d 77, 1969 Ky. LEXIS 361 ( Ky. 1969 ).

Where two well-qualified physicians unequivocally stated that the claimant was able to perform her occupational duties and had sustained no permanent disability, the claimant was not entitled to an award for permanent disability as a matter of law. Floyd County Board of Education v. Jacobs, 451 S.W.2d 405, 1970 Ky. LEXIS 389 ( Ky. 1970 ).

There was no error in the trial court’s refusal to allow the claimant to introduce the deposition of his doctor taken after the final order of the Board, because it showed no new evidence and would have been merely additional and cumulative. Crum v. Princess Coals, Inc., 453 S.W.2d 9, 1970 Ky. LEXIS 293 ( Ky. 1970 ).

Where two physicians for the special fund read a set of X-rays and came to two different conclusions, their testimony did not have the effect of canceling each other and leaving the claimant’s physician’s report alone, for the testimony of either of the physicians for the special fund was enough to warrant the board’s inability to accept the judgment of the claimant’s physician. Blankenship v. Lloyd Blankenship Coal Co., 463 S.W.2d 62, 1970 Ky. LEXIS 664 ( Ky. 1970 ).

Where there was conflicting medical testimony, claimant’s witness testifying that her neck pain was due to an injury and employer’s witnesses testifying that it was due to missing teeth, Board’s determination of this factual issue was conclusive. Wells v. Kentucky Appalachian Industries, Inc., 467 S.W.2d 365, 1971 Ky. LEXIS 377 ( Ky. 1971 ).

Workers’ Compensation Board finding that a claimant was totally and permanently disabled as a result of an occupational disease was based on substantial evidence where the testimony of three doctors, though in conflict with other doctors, was direct, positive and of such a nature as to afford the board a firm basis to conclude that claimant was totally and permanently disabled, and as such was entitled to be upheld. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 1974 Ky. LEXIS 283 ( Ky. 1974 ).

Where the testimony of the treating physician, who performed the operation and observed the preexisting condition, explained in considerable detail why such a condition could be quickly identified in X-rays and was supported in part by a second physician, and such evidence was totally disregarded, the finding of the Board holding the employer fully liable was set aside. Shedd Bartush Foods v. Bratcher, 568 S.W.2d 54, 1978 Ky. App. LEXIS 547 (Ky. Ct. App. 1978), rev'd, 578 S.W.2d 44, 1979 Ky. LEXIS 225 ( Ky. 1979 ).

Where the treating physician felt that a preexisting condition was partially accountable for claimant’s disability, while a physician appointed by the Board to examine claimant disagreed, there was sufficient evidence to allow the Board to believe the accident was the sole cause of claimant’s disability; accordingly, the Circuit Court erred in ordering the Board to apportion some amount of the liability to the special fund. Yocom v. Emerson Electric Co., 584 S.W.2d 744, 1979 Ky. App. LEXIS 446 (Ky. Ct. App. 1979).

Where all of the medical evidence in a claim for occupational disability payments supported a finding that the initial trauma to the claimant’s back, caused by a work-related fall, was causally related to a disc herniation caused by a second non-work related fall, the Workers’ Compensation Board was not justified in disregarding the medical evidence, since the question was one properly within the province of medical experts, especially where the causal relationship was not apparent to the layman and there was a lapse of time between the initial trauma and the disc operation; accordingly, the Board’s order was clearly erroneous and the Circuit Court should have so held pursuant to this section. Mengel v. Hawaiian-Tropic Northwest & Cent. Distributors, Inc., 618 S.W.2d 184, 1981 Ky. App. LEXIS 252 (Ky. Ct. App. 1981).

Where all three physicians who testified agreed that the claimant was not able to return to any type of nonsedentary employment and attributed that inability to the work-related accident, this evidence established the existence of an injury of appreciable proportions and an occupational disability and was so overwhelming as to compel a finding in her favor. Commonwealth v. Workers' Compensation Bd., 697 S.W.2d 540, 1985 Ky. App. LEXIS 652 (Ky. Ct. App. 1985).

Language utilized by medical experts, in which causation was established in terms of “distinct possibility” or “high likelihood,” established a cause or link between the decedent’s death and his working conditions and constituted substantial evidence of probative value supporting the underlying finding of causation set forth by the Workers' Compensation Board. Stauffer Chemical Co. v. Greenwell, 713 S.W.2d 825, 1986 Ky. App. LEXIS 1206 (Ky. Ct. App. 1986).

There was evidence to support an administrative law judge's (ALJ) conclusion that a benefits claimant retained the capacity to return to the type of work that he was performing at the time of his work-related injury; the ALJ gave weight to a doctor who emphatically reported again and again that there was absolutely no physical or medical reason why the claimant could not return to the workforce, including his old job as a framing carpenter. Another doctor stated that the claimant was malingering in an attempt to feign a cognitive disorder. Uninsured Emplr.' Fund v. Poplar Brook Dev., 2015 Ky. App. LEXIS 145 (Ky. Ct. App. Oct. 9, 2015), aff'd, 2016 Ky. Unpub. LEXIS 72 (Ky. Sept. 22, 2016).

While an ALJ was at liberty to pick and choose what evidence was persuasive, the ALJ fragrantly erred in discounting the assessment of an independent medical examiner's evaluation in dismissing the workers' compensation claim where the examiner's report explained how the claimant's work activities caused her to experience pain. Teno v. Ford Motor Co., 2017 Ky. App. LEXIS 90 (Ky. Ct. App.), sub. op., 2017 Ky. App. Unpub. LEXIS 948 (Ky. Ct. App. Apr. 28, 2017).

40. — — — Conflicting.

Where medical evidence is conflicting but the record discloses competent evidence of probative value which supports the fact-findings of the Board, the judgment must be affirmed as neither the Circuit Court nor the appellate court are authorized to determine the weight of the testimony. Tackett v. Eastern Coal Corp., 295 Ky. 422 , 174 S.W.2d 707, 1943 Ky. LEXIS 259 ( Ky. 1943 ).

Where a complainant’s claim was thrown in doubt largely by his conflicting statements, the Court of Appeals did not find that the evidence of the claim was so clear-cut and convincing as would justify its conclusion that the Workers’ Compensation Board acted erroneously in finding that injury did not arise out of and in the course of employment. Columbus Mining Co. v. Childers, 265 S.W.2d 443, 1954 Ky. LEXIS 726 ( Ky. 1954 ).

Where the Board finds against the claimant, the test is whether the evidence for the claimant is so strong as reasonably to require a finding in favor of the claimant. Porter v. Goad, 404 S.W.2d 795, 1966 Ky. LEXIS 309 ( Ky. 1966 ).

It is the prerogative of the Board rather than the courts to determine the degree of functional disability on the basis of the conflicting medical testimony and to translate the functional disability into occupational disability. Kentucky Carbon Corp. v. Dotson, 573 S.W.2d 368, 1978 Ky. App. LEXIS 612 (Ky. Ct. App. 1978).

Where the evidence showed claimant, a garbage collector, was struck in the back by the compactor on the garbage truck in November, 1974, temporarily paralyzing his limbs, after which he returned to work three weeks later and that claimant in May, 1976, lost control of his car, which turned over several times, though he suffered no apparent injury and missed no work, and that claimant three weeks after the second accident, became nauseous and numb over his body, accompanied by pain in his back and lower extremities and has been unable to return to work, the decision of the Board that claimant suffered no permanent disability as a result of the 1974 accident was not clearly erroneous, since the medical testimony had been split and inconclusive, since claimant had not mentioned the 1976 accident to the Board, and since claimant had worked some 18 months after the 1974 accident without complaint until shortly after the 1976 accident. Snawder v. Stice, 576 S.W.2d 276, 1979 Ky. App. LEXIS 369 (Ky. Ct. App. 1979).

Worker failed to carry his burden of proving that he was entitled to a finding of a greater disability than that of having a permanent, partial disability of 13% with a 2-multiplier, as was found by the Administrative Law Judge (ALJ), after the worker was injured lifting a patient while working as a nursing assistant, because the ALJ’s decision, which relied upon the independent medical exam of a neurosurgeon, that the worker could return to medium duty work based on the lack of post-surgical neurological findings was not so unreasonable that it was erroneous as a matter of law, particularly considering the worker’s age and his trainability for different work. Adams v. NHC Healthcare, 2005 Ky. App. LEXIS 205 (Ky. Ct. App.), sub. op., 2005 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. Sept. 23, 2005), aff'd, 199 S.W.3d 163, 2006 Ky. LEXIS 201 ( Ky. 2006 ).

40. — — —Conflicting.

Workers’ Compensation Board erred in affirming the decisions of an ALJ dismissing an employee’s claims against her employer because, while the independent medical examiner disagreed with the conclusion that the employee’s injury was related to her work, he did not specifically address whether her underlying degenerative condition was aroused by her work activities. Robinson v. Kroger, 2019 Ky. App. LEXIS 59 (Ky. Ct. App. Apr. 12, 2019).

41. Fraud.

Fraud means something more than mere mistakes or errors of judgment in the administration of the law. Calloway v. Octavia J. Coal Mining Co., 271 Ky. 8 , 111 S.W.2d 395, 1937 Ky. LEXIS 179 ( Ky. 1937 ).

Fact that assistant attorney general represented claimant in hearing before full Board and that such assistant had as one of his duties the duty of representing Board in actions against it did not sustain contention of employer that appearance before Board by such assistant attorney general on behalf of employee constituted fraud, justifying reversal of Board’s award, since it was not shown that assistant attorney general’s official position, rather than validity of his legal and factual arguments, influenced Board to make its award so that, at most, impropriety was shown. Crummies Creek Coal Co. v. Taylor, 283 Ky. 364 , 141 S.W.2d 287, 1940 Ky. LEXIS 332 ( Ky. 1940 ).

42. Venue.

Where employee, engaged in the trade of servicing and maintenance of furnaces over a period of many years worked about eight hours on a blower and two units attached to it in Kenton County and later on the same day suffered shortness of breath and a heart condition and later was required to undergo a tracheotomy, the last incident in Kenton County triggered the disability and consequently fixed the venue for the appeal. Cabe v. Dudgeon, 404 S.W.2d 283, 1966 Ky. LEXIS 291 ( Ky. 1966 ).

43. Decision of Board.

In a situation in which it may not be said that the evidence for the claimant was so overwhelming as to make a contrary finding clearly erroneous, the finding of the Board will not be disturbed. Merit Clothing Co. v. Jewell, 459 S.W.2d 88, 1970 Ky. LEXIS 112 ( Ky. 1970 ).

Where the Board was not persuaded by the claimant’s evidence that a change of condition had occurred and the evidence in her behalf was not so strong as to require a finding in her favor, the board’s decision not to reopen could not be upset on judicial review. Calvert v. Brown & Williamson Tobacco Co., 465 S.W.2d 75, 1971 Ky. LEXIS 435 ( Ky. 1971 ).

Where one doctor in a workers’ compensation case put the claimant’s disability at 15 percent while two other doctors fixed his disability at 100 percent, the board may from these facts make an award of 50 percent permanent partial disability, since it is the board’s prerogative to fix the percentage of disability from the medical evidence in light of the occupational demands. Commonwealth, Dep't of Highways v. Gay, 472 S.W.2d 508, 1971 Ky. LEXIS 202 ( Ky. 1971 ).

The medical and other evidence provided a sufficient basis for the Workers’ Compensation Board to make its determination that the death of the claimant from a blood disease was caused by exposure to the chemicals with which he worked and to which he was exposed during his work years. Stauffer Chemical Co. v. Greenwell, 713 S.W.2d 825, 1986 Ky. App. LEXIS 1206 (Ky. Ct. App. 1986).

44. — Question of Fact.

In the absence of fraud or mistake, a finding of fact by the Board is conclusive where it is supported by competent evidence of probative value. Consolidation Coal Co. v. Walters, 295 Ky. 396 , 174 S.W.2d 690, 1943 Ky. LEXIS 253 ( Ky. 1943 ). See Maynard v. Pond Creek Collieries Co., 299 Ky. 157 , 184 S.W.2d 991, 1945 Ky. LEXIS 399 ( Ky. 1945 ).

The Circuit Court cannot direct the findings that the Board shall make, nor can it substitute its judgment on the weight of evidence for that of the Board by rendering its own findings; the Board’s findings are conclusive. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 1984 Ky. App. LEXIS 550 (Ky. Ct. App. 1984).

45. —Affirming.

The decision of the Workers’ Compensation Board must be affirmed by the courts if supported by any evidence of probative value. Blue Diamond Coal Co. v. Whitaker, 303 Ky. 716 , 198 S.W.2d 792, 1946 Ky. LEXIS 919 ( Ky. 1946 ).

The courts will not disturb a finding of fact by the Board if it is supported by competent evidence of probative value. Pond Creek Collieries Co. v. La Santos, 307 Ky. 866 , 212 S.W.2d 530, 1948 Ky. LEXIS 846 ( Ky. 1948 ).

If there is any substantial competent evidence in the record which supports the Board’s finding, it must be upheld. H. Smith Coal Co. v. Marshall, 243 S.W.2d 40, 1951 Ky. LEXIS 1115 ( Ky. 1951 ).

Where there is substantial evidence to support findings of Workers’ Compensation Board, Court of Appeals must uphold board’s order. Inland Steel Co. v. Johnson, 336 S.W.2d 581, 1960 Ky. LEXIS 343 ( Ky. 1960 ).

Where the parents failed to persuade the Board that they were dependent upon their deceased son and the Board found that they were not dependent, the decision of the Board must stand. Ireland v. Liberty Mut. Ins. Co., 462 S.W.2d 903, 1971 Ky. LEXIS 556 ( Ky. 1971 ).

Where the medical testimony warranted the board’s finding of less than total disability and evidence in behalf of claimant was not so strong as to impel a finding of total disability, Board’s finding will not be disturbed. Young v. Scotia Coal Co., 464 S.W.2d 796, 1971 Ky. LEXIS 496 ( Ky. 1971 ).

Where the employer and the special fund in a joint petition requested that the court enter judgment conforming to the record, the employer could not be heard to complain when after review of the record the court placed the entire liability on the employer. Queen City Dinette Co. v. Grant, 477 S.W.2d 808, 1972 Ky. LEXIS 372 ( Ky. 1972 ).

Where the record overwhelmingly supported the Board’s finding that the claimant did not sustain an injury of appreciable proportions as a result of a coworker throwing a snowball at him, such findings would not be disturbed on appeal. Mitchell v. Union Carbide Corp., 655 S.W.2d 17, 1983 Ky. App. LEXIS 329 (Ky. Ct. App. 1983).

Workers' Compensation Board properly ruled in the employee's favor in determining that he was providing a service to the employer and was entitled to traveling employee status at the time of an accident where he routinely drive his truck to and from his home, keeping the truck at home benefitted the employer by reducing fuel costs, wear and tear on the vehicles, and maintenance costs, and returning home early because of illness did not introduce a significant departure from the routine of beginning and ending his route from his home. First Class Servs. v. Hensley, 2017 Ky. App. LEXIS 621 (Ky. Ct. App.), sub. op., 2017 Ky. App. Unpub. LEXIS 951 (Ky. Ct. App. Oct. 13, 2017).

46. —Reversing.

Where the evidence was consistent with the fact that the claimant injured his back at home, and other than his own testimony, which appeared inconsistent with the alleged circumstances, his only evidence as to an injury on the job were his self-serving statements given to physicians, such evidence was insufficient to support the determination of the Workers’ Compensation Board that the claimant was entitled to disability benefits. Holbert v. Wickes Lumber Supply, 683 S.W.2d 946, 1984 Ky. App. LEXIS 545 (Ky. Ct. App. 1984).

The Circuit Court can only reverse the Board’s decision, finding temporary partial disability and denying vocational rehabilitation if the evidence presented compels a finding for the claimant. For the evidence to be compelling, the evidence produced in favor of the claimant must be so overwhelming that no reasonable person could reach the conclusion of the Board. Reo Mechanical v. Barnes, 691 S.W.2d 224, 1985 Ky. App. LEXIS 527 (Ky. Ct. App. 1985).

The trial court erred in reversing the apportionment of the Workers’ Compensation Board and substituting its findings for those of the Board, where the order and award of the Board were not clearly erroneous on the basis of reliable, probative and material evidence contained in the whole record. Wells v. Bailey, 698 S.W.2d 841 (Ky. Ct. App. 1985).

Workers’ Compensation Board’s decision denying permanent occupational disability benefits to a 79 year-old truck driver who sustained a fractured clavicle and a compression fracture of the lumbar vertebra in a work-related accident where evidence was overwhelming that the driver suffered some degree of occupational injury, was reversed. Liters Quarry, Inc. v. Edday, 770 S.W.2d 685, 1988 Ky. App. LEXIS 172 (Ky. Ct. App. 1988).

47. Withdrawal of Opinion.

The Workers’ Compensation Board retains control over an opinion it has rendered and, thus, may withdraw that opinion until such time as a party has filed a petition for judicial review or until the time for seeking judicial review has expired, that is, within 30 days of the entry of the board’s opinion. Kiah Creek Mining v. Stewart, 2000 Ky. App. LEXIS 92 (Ky. Ct. App. Aug. 18, 2000), aff'd, 42 S.W.3d 614, 2001 Ky. LEXIS 57 ( Ky. 2001 ).

48. — Findings.

The Circuit Court cannot direct the findings that the Board shall make. Reo Mechanical v. Barnes, 691 S.W.2d 224, 1985 Ky. App. LEXIS 527 (Ky. Ct. App. 1985).

The Circuit Court cannot substitute its judgment for that of the Board by rendering its own findings. Reo Mechanical v. Barnes, 691 S.W.2d 224, 1985 Ky. App. LEXIS 527 (Ky. Ct. App. 1985).

No award, order or decision of the Workers’ Compensation Board shall be reversed or remanded on appeal to any court because of failure of the Board to make findings of an essential fact, unless said failure is brought to the attention of the Board by petition for rehearing pursuant to KRS 342.281 . Eaton Axle Corp. v. Nally, 688 S.W.2d 334, 1985 Ky. LEXIS 219 ( Ky. 1985 ), dismissed, Whittaker v. Reeder, 2000 Ky. LEXIS 93 (Ky. Aug. 24, 2000).

49. Board’s Discretion.

The Workers’ Compensation Board’s ruling allowing the depositions of two of the five employer’s doctors to be filed more than ten days after submission of the case and in allowing the employer to take and file the deposition of another of the five doctors after submission of the case was discretionary, and the action did not constitute an abuse or an unwarranted exercise of discretion. Varney v. Johns Creek Elkhorn Coal Corp., 436 S.W.2d 258, 1968 Ky. LEXIS 181 ( Ky. 1968 ).

In a case possibly involving silicosis, when the employee offers to submit to a biopsy at his own expense and the Board-appointed physician attests to the determinative character of such procedure, the Board should permit the biopsy and a report of its result, providing appropriate opportunity for adversary parties to observe medical procedures, if the motion for the biopsy is made prior to a decision of the case on its merits, and Board’s refusal to afford claimant opportunity to submit the results of the biopsy prior to its rendering its decision was a clearly unwarranted exercise of discretion proscribed by subsection (3)(e) (now (2)(d)) of this section. Tutor Key Coal Co. v. Daniel, 463 S.W.2d 932, 1971 Ky. LEXIS 598 ( Ky. 1971 ), limited, Thacker v. Republic Steel Corp., 484 S.W.2d 832, 1972 Ky. LEXIS 150 ( Ky. 1972 ).

It was not an abuse of discretion for the Workers’ Compensation Board to refuse to reopen a case to consider claimant’s deposition to effect that he had been employed as truck driver where claimant knew he had been employed as truck driver for four months during two-year period preceding disability from silicosis, four-month gap in his work history was apparent on his application for benefits, and he was repeatedly given extensions of time to complete proof. Yocom v. Butcher, 551 S.W.2d 841, 1977 Ky. App. LEXIS 715 (Ky. Ct. App. 1977).

Kentucky Workers' Compensation Board rightfully found that a claimant was not entitled to an award of certain medical expenses because the claimant did not identify in the benefit review conference order unpaid or contested medical expenses as a contested issue for the administrative law judge to resolve at the formal hearing, but nonetheless raised and presented proof of the disputed medical bills at the hearing. Moreover, the claimant made no mention of the bills until re-direct examination, but not during the claimant's direct examination. Roach v. Owensboro Health Reg'l Hosp., 518 S.W.3d 786, 2017 Ky. App. LEXIS 67 (Ky. Ct. App. 2017).

50. Relief Awarded.

CR 55.01 does not bind an appellate court, on appeal from a decision of the Workers’ Compensation Board, to grant the particular relief requested in the successful movant’s pleadings. Yocom v. Emerson Electric Co., 584 S.W.2d 744, 1979 Ky. App. LEXIS 446 (Ky. Ct. App. 1979).

Claimant’s injury, sustained while participating in workplace charity fundraiser, occurred within the course and scope of her employment because the event, taken in the context of an annual month-long fundraising campaign at her workplace, was a regular incident of the claimant’s employment. KRS 342.285(2)(c) and (d) permitted reversal of the administrative law judge’s contrary decision. Am. Greetings Corp. v. Bunch, 331 S.W.3d 600, 2010 Ky. LEXIS 196 ( Ky. 2010 ).

Claimant was properly awarded workers’ compensation benefits because an argument that a doctor’s opinion was fatally flawed based on an inaccurate or incomplete medical history was rejected; there was nothing to show that the claimant attempted to conceal her previous neck and shoulder pain from medical experts. The doctor’s opinion was not unsupported by any other credible evidence, and the weight to be given to the opinion was a matter for an administrative law judge to decide within the broad scope of his discretion; in addition, the doctor’s assessment of the claimant’s impairment rating fully comported with the range of impairment for the assigned category of injury. GSI Commerce v. Thompson, 409 S.W.3d 361, 2012 Ky. App. LEXIS 197 (Ky. Ct. App. 2012).

51. Temporary Total Disability Benefits.

By imposing upon the administrative law judges and the Workers’ Compensation Board rather stringent time limits in cases arising under this chapter, it would appear that the legislature’s intent was that the amounts paid by the employer for temporary disability and medical expenses would not amount to a large sum of money, and that no appeal was intended from an award of interlocutory relief in the form of temporary total disability benefits. Transit Authority of River City v. Saling, 774 S.W.2d 468, 1989 Ky. App. LEXIS 89 (Ky. Ct. App. 1989).

Court of appeals erred in reversing an award of TTD benefits on the ground that an ALJ did not make the essential findings under KRS 342.285(2) because the ALJ determined that the employee had not reached maximum medical improvement from the work-related shoulder injury and that the employee had not reached a level of improvement to return to employment. Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 2012 Ky. LEXIS 122 ( Ky. 2012 ).

52. Stipulation.

Where plaintiff (1) adduced evidence on the issue forming the basis of the stipulation; (2) listed work-relatedness as an issue in his brief; and (3) did not mention the stipulation in his petition for reconsideration, he could not complain that the administrative law judge failed to enforce the stipulation on administrative appeal. Osborne v. Pepsi-Cola, 816 S.W.2d 643, 1991 Ky. LEXIS 144 ( Ky. 1991 ).

53. Majority Approval Required.

An order of the Board requires the approval of a majority of its members. Childers v. Hackney's Creek Coal Co., 337 S.W.2d 680, 1960 Ky. LEXIS 365 ( Ky. 1960 )(decided under prior law).

54. Decision of Nonappointed Commissioner.

A decision by a nonappointed individual designated as a commissioner which was adopted by the full Workers’ Compensation Board was not official where the minimal requirements of former law, that at least one Board member read the briefs of the parties and check the proposed opinion to see if it fairly deals with the issues, were not met, since KRS 342.230 , prior to its 1987 amendment, specifically stated that the hearing officer (commissioner) may not render final decisions, orders or awards. W. M. Cissell Mfg. Co. v. Harris, 609 S.W.2d 377, 1980 Ky. App. LEXIS 393 (Ky. Ct. App. 1980)(decided under prior law).

Where the Workers’ Compensation Board delegated its fact-finding and decision-making authority to a nonappointed individual designated as a commissioner and no member of the Board read the record or any of the depositions in the record, the decision was in violation of this section. W. M. Cissell Mfg. Co. v. Harris, 609 S.W.2d 377, 1980 Ky. App. LEXIS 393 (Ky. Ct. App. 1980) (decided under prior law).

Cited in:

Farmer Motor Co. v. Smith, 249 Ky. 445 , 60 S.W.2d 929, 1933 Ky. LEXIS 517 ( Ky. 1933 ); American Rolling Mill Co. v. Stevens, 290 Ky. 16 , 160 S.W.2d 355, 1941 Ky. LEXIS 4 , 145 A.L.R. 1256 ( Ky. 1941 ); Middleton’s Adm’x v. Middleton, 297 Ky. 109 , 179 S.W.2d 227, 1944 Ky. LEXIS 692 ( Ky. 1944 ); Schaab v. Irwin, 298 Ky. 626 , 183 S.W.2d 814, 1944 Ky. LEXIS 971 ( Ky. 1944 ); H. H. Waegner & Co. v. Moock, 303 Ky. 222 , 197 S.W.2d 254, 1946 Ky. LEXIS 822 ( Ky. 1946 ); Browning v. Moss Williams & Co., 306 Ky. 520 , 208 S.W.2d 495, 1948 Ky. LEXIS 593 ( Ky. 1948 ); Cornett-Lewis Coal Co. v. Day, 312 Ky. 221 , 226 S.W.2d 951, 1950 Ky. LEXIS 622 ( Ky. 1950 ); Harvey Coal Corp. v. Morris, 314 Ky. 781 , 237 S.W.2d 70, 1951 Ky. LEXIS 751 ( Ky. 1951 ); Columbus Mining Co. v. Pelfrey, 237 S.W.2d 847, 1951 Ky. LEXIS 781 ( Ky. 1951 ); Department of Conservation v. Sowders, 244 S.W.2d 464, 1951 Ky. LEXIS 1220 (Ky. 1951); Old King Min. Co. v. Messer, 252 S.W.2d 863, 1952 Ky. LEXIS 102 7 ( Ky. 1952 ); Tyler-Couch Const. Co. v. Elmore, 264 S.W.2d 56, 1954 Ky. LEXIS 642 ( Ky. 1954 ); Belcher v. Cornman’s Adm’x, 265 S.W.2d 492, 1954 Ky. LEXIS 745 ( Ky. 1954 ); Martin v. Cornett-Lewis Coal Co., 287 S.W.2d 164, 1956 Ky. LEXIS 4 49 ( Ky. 1956 ); Peabody Coal Co. v. Taulbee, 294 S.W.2d 925, 1956 Ky. LEXIS 143 ( Ky. 1956 ); Carrier v. Moberly, 315 S.W.2d 633, 1958 Ky. LEXIS 334 ( Ky. 1958 ); Raley v. Pittsburg-Des Moines Steel Co., 317 S.W.2d 900, 1958 Ky. LEXIS 119 ( Ky. 1958 ); Wells v. General Elec. Co., 318 S.W.2d 865, 1958 Ky. LEXIS 153 (Ky. 1958); Childers v. Stephenson, 320 S.W.2d 797, 1959 Ky. LEXIS 251 ( Ky. 1959 ); Grigsby v. Fraley, 322 S.W.2d 108, 1959 Ky. LEXIS 29 5 ( Ky. 1959 ); Thacker v. R. F. Coal Co., 332 S.W.2d 532, 1960 Ky. LEXIS 152 ( Ky. 1960 ); Hall Coal Co. v. Kirk, 335 S.W.2d 932, 1960 Ky. LEXIS 303 ( Ky. 1960 ); Shepherd v. Laurel Branch Coal Co., 335 S.W.2d 943, 1960 Ky. LEXIS 304 (Ky. 1960); Leep v. Kentucky State Police, 340 S.W.2d 600, 1960 Ky. LEXIS 57 (Ky. 1960); Commonwealth Dep’t of Highways v. Crutchfield, 365 S.W.2d 102, 1963 Ky. LEXIS 215 ( Ky. 1963 ); Huber & Huber Motor Freight Co. v. Workmen’s Compensation Board, 371 S.W.2d 481, 1963 Ky. LEXIS 98 ( Ky. 1963 ); Kerns Bakery v. Hodges, 377 S.W.2d 88, 1964 Ky. LEXIS 485 ( Ky. 1964 ); National Stores, Inc. v. Hester, 393 S.W.2d 603, 1965 Ky. LEXIS 24 1 ( Ky. 1965 ); Lewis v. United States Steel Corp., 398 S.W.2d 490, 1966 Ky. LEXIS 492 ( Ky. 1966 ); Highland Roofing & Sheet Metal Co. v. Helms, 407 S.W.2d 132, 1966 Ky. LEXIS 142 ( Ky. 1966 ); Roberts v. Tennessee-Virginia Constr. Co., 407 S.W.2d 400, 1966 Ky. LEXIS 153 (Ky. 1966); Shaw v. Sippi Products, 411 S.W.2d 926, 1966 Ky. LEXIS 29 (Ky. 1966); Cabe v. Toler, 411 S.W.2d 41, 1967 Ky. LEXIS 45 5 ( Ky. 1967 ); Cabe v. Olin Mathieson Chemical Corp., 412 S.W.2d 250, 1967 Ky. LEXIS 418 ( Ky. 1967 ); Rice v. Conley, 414 S.W.2d 138, 1967 Ky. LEXIS 351 (Ky. 1967); Murray Hospital Asso. v. Harvey, 419 S.W.2d 335, 1967 Ky. LEXIS 147 (Ky. 1967); Johnson v. Elkhorn & Jellico Coal Co., 422 S.W.2d 886, 1967 Ky. LEXIS 45 (Ky. 1967); Ford Furniture Co. v. Claywell, 473 S.W.2d 821, 1971 Ky. LEXIS 165 ( Ky. 1971 ); Yocom v. Messer, 487 S.W.2d 946, 1972 Ky. LEXIS 98 ( Ky. 1972 ); Yocom v. Travelers Ins. Co., 502 S.W.2d 520, 1973 Ky. LEXIS 76 ( Ky. 1973 ); Standard Products Co. v. Estes, 508 S.W.2d 771, 1974 Ky. LEXIS 629 ( Ky. 1974 ); Davis v. Comer, 532 S.W.2d 12, 1975 Ky. LEXIS 22 ( Ky. 1975 ); Yocom v. United States Steel Corp., 566 S.W.2d 160, 1977 Ky. App. LEXIS 914 (Ky. Ct. App. 1977); May v. James H. Drew Shows, Inc., 576 S.W.2d 524, 1978 Ky. App. LEXIS 662 (Ky. Ct. App. 1978); Glass v. Holloway Constr. Co., 591 S.W.2d 712, 1979 Ky. App. LEXIS 497 (Ky. Ct. App. 1979); W. M. Cissell Mfg. Co. v. Harris, 609 S.W.2d 377, 1980 Ky. App. LEXIS 393 (Ky. Ct. App. 1980); Davis v. Wilson, 619 S.W.2d 709, 1980 Ky. App. LEXIS 435 (Ky. Ct. App. 1980); Heckel v. Singleton, 627 S.W.2d 279, 1982 Ky. App. LEXIS 200 (Ky. Ct. App. 1982); Gayner v. Packaging Service Corp., 636 S.W.2d 658, 1982 Ky. App. LEXIS 227 (Ky. Ct. App. 1982); J. T. Nelson Co. v. Comstock, 636 S.W.2d 896, 1982 Ky. App. LEXIS 231 (Ky. Ct. App. 1982); Hammond v. Department for Human Resources Bureau for Social Ins., 652 S.W.2d 91, 1983 Ky. App. LEXIS 291 (Ky. Ct. App. 1983); Tri-Gem Coal Co. v. Whitaker, 661 S.W.2d 785, 1983 Ky. App. LEXIS 373 (Ky. Ct. App. 1983); Pickhart v. United States Post Office, 664 S.W.2d 939, 1983 Ky. App. LEXIS 315 (Ky. Ct. App. 1983); Smith v. Commonwealth, Dep’t of Justice, 686 S.W.2d 831, 1985 Ky. App. LEXIS 543 (Ky. Ct. App. 1985); Wells v. Phelps Dodge Magnet Wire Co., 701 S.W.2d 411, 1985 Ky. App. LEXIS 672 (Ky. Ct. App. 1985); Tucker v. Tri-State Lawn & Garden, Inc., 708 S.W.2d 116, 1986 Ky. App. LEXIS 1056 (Ky. Ct. App. 1986); Wells v. Baker, 713 S.W.2d 476, 1986 Ky. App. LEXIS 1134 (Ky. Ct. App. 1986); Pittsburgh & Midway Coal Mining Co. v. Chappel, 714 S.W.2d 485, 1986 Ky. App. LEXIS 1133 (Ky. Ct. App. 1986); Mills v. Blake, 734 S.W.2d 494, 1987 Ky. App. LEXIS 515 (Ky. Ct. App. 1987); Farris v. Huston Barger Masonry, Inc., 780 S.W.2d 611, 1989 Ky. LEXIS 102 ( Ky. 1989 ); Mill Street Church of Christ v. Hogan, 785 S.W.2d 263, 1990 Ky. App. LEXIS 32 (Ky. Ct. App. 1990); Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 1990 Ky. LEXIS 24 ( Ky. 1990 ); Davis v. Island Creek Coal Co., 969 S.W.2d 712, 1998 Ky. LEXIS 99 ( Ky. 1998 ); Magic Coal Co. v. Fox, 19 S.W.3d 88, 2000 Ky. LEXIS 60 ( Ky. 2000 ); Ira A. Watson Dep’t Store v. Hamilton, 34 S.W.3d 48, 2000 Ky. LEXIS 131 ( Ky. 2000 ); Johnson Controls, Inc. v. Russell, 95 S.W.3d 921, 2002 Ky. App. LEXIS 1850 (Ky. Ct. App. 2002); Brasch-Barry Gen. Contrs. v. Jones, 175 S.W.3d 81, 2005 Ky. LEXIS 326 ( Ky. 2005 ); Combs v. Ky. River Dist. Health Dep’t, 194 S.W.3d 823, 2006 Ky. App. LEXIS 35 (Ky. Ct. App. 2006); FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 2007 Ky. LEXIS 23 ( Ky. 2007 ); Mirzaee v. UPS, — S.W.3d —, 2007 Ky. App. LEXIS 413 (Ky. Ct. App. 2007); Abel Verdon Constr. v. Rivera, 348 S.W.3d 749, 2011 Ky. LEXIS 116 ( Ky. 2011 ); James T. English Trucking v. Beeler, 375 S.W.3d 67, 2012 Ky. LEXIS 125 ( Ky. 2012 ); Lunte v. Two Chicks, LLC, 2015 Ky. App. LEXIS 104 (July 10, 2015); Cruse v. Henderson Cnty. Bd. of Educ., 2015 Ky. App. LEXIS 103 (July 10, 2015); REM Co. v. Cummins, 2015 Ky. App. LEXIS 107 (July 10, 2015).

NOTES TO UNPUBLISHED DECISIONS

1. Decision of Board.
2. —Reversing.

Unpublished decision: Kentucky Workers’ Compensation Board erred by reversing and remanding a matter to an administrative law judge (ALJ) because, rather than remanding again for factual findings on permanent total disability benefits, the Board chose to find the ALJ’s ruling an abuse of discretion and essentially ignored the ALJ’s factual findings regarding the nature, severity, and duration of the claimant’s injury, and their effect on the claimant’s employment prospects, in favor of an overly strict reading of the authority regarding two of the other factors. Roby v. Trim Masters, Inc., 2016 Ky. App. LEXIS 129 (Ky. Ct. App. July 22, 2016), aff'd, 2017 Ky. Unpub. LEXIS 48 (Ky. Aug. 24, 2017).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 64 Ky. L.J. 307 (1975-76).

Kentucky Law Survey, Garvey and Doutt, Civil Procedure, 68 Ky. L.J. 529 (1979-1980).

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

Northern Kentucky Law Review.

Heeter, Recent Decisions on the Kentucky Rules of Evidence, 22 N. Ky. L. Rev. 463 (1995).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Notice of Appeal to Workers’ Compensation Board, Form 102.01.

Caldwell’s Kentucky Form Book, 5th Ed., Notice of Cross Appeal to Workers’ Compensation Board, § 102.02.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Appeals to Kentucky Court of Appeals of Workers’ Compensation Decisions, § 102.00.

342.290. Review by Court of Appeals.

The decision of the board shall be subject to review by the Court of Appeals pursuant to Section 111 of the Kentucky Constitution and rules adopted by the Supreme Court. The scope of review by the Court of Appeals shall include all matters subject to review by the board and also errors of law arising before the board and made reviewable by the rules of the Supreme Court for review of decisions of an administrative agency.

History. 4936: amend. Acts 1948, ch. 152, § 2; 1962, ch. 141; 1964, ch. 192, § 23; 1976 (Ex. Sess.), ch. 14, § 276, effective January 2, 1978; 1987 (Ex. Sess.), ch. 1, § 35, effective January 4, 1988.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Appeal.
  3. — Scope.
  4. — Final Order.
  5. Findings.
  6. Evidence.
1. Constitutionality.

The present KRS 342.290 in no way conflicts with Ky. Const., § 115; this statute by the 1987 amendment simply eliminated the Circuit Court as the court authorized to review opinions, orders and awards of the Workers’ Compensation Board, and gave the Court of Appeals the same power to review as had been originally given by statute to the Circuit Court — no more, and no less. Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 1990 Ky. LEXIS 24 ( Ky. 1990 ).

This section is constitutional as it does not deprive litigants before the Workers’ Compensation Board of their right of review or right of appeal. Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 1990 Ky. LEXIS 24 ( Ky. 1990 ).

2. Appeal.

The Workers’ Compensation Board has the right to appeal to the Court of Appeals. Workmen's Compensation Board v. Abbott, 212 Ky. 123 , 278 S.W. 533, 1925 Ky. LEXIS 1088 ( Ky. 1925 ).

Kentucky Constitution, § 115 gives a matter of right appeal to the Supreme Court via this section to parties in workers’ compensation actions and therefore, since CR 76.25(12) attempts to limit that matter of right appeal, CR 76.25(12) is unconstitutional. Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 1990 Ky. LEXIS 24 ( Ky. 1990 ).

Because regardless of when a judgment or order is rendered, it is its notation in the docket by the clerk which constitutes “entry,” where there was no indication that the Workers’ Compensation Board’s decision was noted on the docket on the date of rendition, Court of Appeals’ dismissal of claim as untimely was reversed and case remanded with claimant ordered to obtain and file with the court, within 21 days, a document containing a certificate which reflected the date upon which the decision of the Board was entered and the date upon which the parties were served with notice of the decision. Staton v. Poly Weave Bag Co., 930 S.W.2d 397, 1996 Ky. LEXIS 81 ( Ky. 1996 ).

Since a worker’s unopposed motion to name the Workers’ Compensation Board as an appellee was filed only slightly more than a week after the time for taking an appeal expired, and the function of CR 76.25(4)(a) was not to make the Board an indispensable party but to require that it be served with a copy of the petition, dismissal was an unwarranted sanction. Hutchins v. GE, 190 S.W.3d 333, 2006 Ky. LEXIS 101 ( Ky. 2006 ).

3. — Scope.

Award of compensation by Board cannot be disturbed on facts, where substantial testimony exists in favor of injured servant. Consolidation Coal Co's Receiver v. Scott, 253 Ky. 570 , 69 S.W.2d 1032, 1934 Ky. LEXIS 705 ( Ky. 1934 ).

Truthfulness of witnesses is for Board and not Court of Appeals. Consolidation Coal Co's Receiver v. Scott, 253 Ky. 570 , 69 S.W.2d 1032, 1934 Ky. LEXIS 705 ( Ky. 1934 ).

The courts will not disturb a finding of fact by the Board if it is supported by competent evidence of probative value. Pond Creek Collieries Co. v. La Santos, 307 Ky. 866 , 212 S.W.2d 530, 1948 Ky. LEXIS 846 ( Ky. 1948 ).

A review by the courts will be limited to determining whether there was any substantial evidence of probative value to support the finding of fact by the board. State Highway Dep't v. Hopwood, 331 S.W.2d 900, 1960 Ky. LEXIS 138 ( Ky. 1960 ).

In order for the Court of Appeals to reverse the finding of the Workers’ Compensation Board, the claimant must present evidence that is so overwhelming as to compel a decision in his favor. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 1985 Ky. LEXIS 237 ( Ky. 1985 ).

The Workers’ Compensation Board, as the finder of fact, and not the reviewing court, has the authority to determine the quality, character and substance of the evidence presented to the Board, and the reviewing court may not substitute its judgment for that of the Board. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 1985 Ky. LEXIS 237 ( Ky. 1985 ).

The Workers’ Compensation Board’s decision in favor of a claimant will not be disturbed on appeal if supported by substantial evidence of probative value in the record. Louisville Cooperage v. Knoppe, 695 S.W.2d 440, 1985 Ky. App. LEXIS 634 (Ky. Ct. App. 1985).

A finding for the claimant by the Workers’ Compensation Board will not be disturbed on appeal to either the Circuit Court or an appellate court if there is any substantive evidence of probative value to support it. Woolum v. Woolum, 684 S.W.2d 20, 1984 Ky. App. LEXIS 571 (Ky. Ct. App. 1984).

The Workers’ Compensation Board is entitled to the same deference for its appellate decisions as when the Supreme Court of Kentucky exercises discretionary review of Kentucky Court of Appeals decisions in cases that originate in Circuit Court. The function of further review of the Workers’ Compensation Board 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 the Supreme Court of Kentucky 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. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 1992 Ky. LEXIS 60 ( Ky. 1992 ).

The Workers’ Compensation Board was authorized to determine that an award which was entered at reopening did not conform to Chapter 342, regardless of whether the particular error in applying the law which caused the board to reach that conclusion was contested by a party and regardless of whether the initial award was appealed on a different ground. Whittaker v. Reeder, 30 S.W.3d 138, 2000 Ky. LEXIS 137 ( Ky. 2000 ).

Board was authorized pursuant to KRS 342.285 and KRS 342.290 to overrule the administrative law judge’s finding that the employee was not entitled to KRS 342.020(1) future medical benefits for a shoulder injury that the employee sustained while working for the employer, despite the fact that the employee seemed to have healed after undergoing surgery. Under KRS 342.020(1), the employee was entitled to reasonable and necessary medical treatment at the time of the injury and thereafter during disability, assuming the employee could show disability, without regard to the duration of income benefits. Kroger v. Ligon, 338 S.W.3d 269, 2011 Ky. LEXIS 68 ( Ky. 2011 ).

4. — Final Order.

Order of Circuit Court, made on court’s own motion, remanding case to board for further proof was a final and appealable order. Searcy v. Three Point Coal Co., 280 Ky. 683 , 134 S.W.2d 228, 1939 Ky. LEXIS 188 ( Ky. 1939 ). See Kenmont Coal Co. v. Clark, 294 Ky. 226 , 171 S.W.2d 242, 1943 Ky. LEXIS 413 ( Ky. 1943 ).

Order of Circuit Court remanding case to Workers’ Compensation Board with directions to hear depositions previously excluded by board and to hear further proof, if it deemed necessary to do so, impliedly conferred on board the power to make a different award and was therefore an appealable order. Inland Steel Co. v. Newsome, 281 Ky. 681 , 136 S.W.2d 1077, 1940 Ky. LEXIS 89 ( Ky. 1940 ).

Where Circuit Court only remanded case for further findings, and did not make a final disposition by way of terminating the action, adjudicate the rights of any party, or operate to divest any party of some right, the action of the Circuit Court in remanding the case was not a final and appealable order within the meaning of CR 54.01. Stewart v. Lawson, 689 S.W.2d 21, 1985 Ky. LEXIS 222 ( Ky. 1985 ), overruled, Davis v. Island Creek Coal Co., 969 S.W.2d 712, 1998 Ky. LEXIS 99 ( Ky. 1998 ).

5. Findings.

No award, order or decision of the Workers’ Compensation Board shall be reversed or remanded on appeal to any court because of failure of the Board to make findings of an essential fact, unless said failure is brought to the attention of the Board by petition for rehearing pursuant to KRS 342.281 . Eaton Axle Corp. v. Nally, 688 S.W.2d 334, 1985 Ky. LEXIS 219 ( Ky. 1985 ), dismissed, Whittaker v. Reeder, 2000 Ky. LEXIS 93 (Ky. Aug. 24, 2000).

6. Evidence.

Where the treating physician found the claimant to have a 10 percent functional disability, the job required less than five percent manual labor and the claimant had worked for a year before retiring, the evidence is not so overwhelming as to compel a decision by the Court of Appeals that the claimant sustained a permanent disability or occupational loss. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 1985 Ky. LEXIS 237 ( Ky. 1985 ).

Where the transcript of record before the Workers’ Compensation Board was not filed with the trial court until a month after the judgment was rendered, the employer was not prejudiced in view of the fact that the appellate court carefully studied the transcript of evidence and its opinion specifically pointed to medical testimony which supported the conclusion of the Board that claimant’s condition was work-related. Korfhage Florist v. Carberry, 705 S.W.2d 458, 1986 Ky. LEXIS 240 ( Ky. 1986 ).

Overwhelming evidence, including a light-duty work restriction that required minimal use of his right hand, indicated that an employee’s injury prevented him from performing his customary work as a foreman. It was thus unreasonable to conclude that his customary work came within his restrictions and that he failed to meet his burden of proof under KRS 342.0011(11)(a). FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 2007 Ky. LEXIS 23 ( Ky. 2007 ).

Administrative law judge’s finding of a temporary work-related low back injury was supported by substantial evidence as: (1) a workers’ compensation claimant’s story that there was a sudden explosion that shook the employer’s building, that the floor vibrated, and that immediately thereafter the claimant experienced back and neck pain and a severe headache remained basically the same, (2) an independent medical examination found that the claimant’s pain was consistent with the events described by the claimant, and (3) the surveillance tapes did not capture everything that happened, or always depict the claimant. Wal-Mart Stores, Inc. v. Smith, 277 S.W.3d 610, 2008 Ky. App. LEXIS 189 (Ky. Ct. App. 2008).

Under KRS 342.285 , the administrative law judge (ALJ) was designated the finder of fact in workers’ compensation cases and under KRS 342.290 , the Board or a reviewing court could not substitute its judgment for the ALJs as to the weight of evidence on questions of fact. As a result, the state supreme court had to uphold the ALJ’s ruling in favor of the employee on the employee’s occupational hearing loss claim against the employer, as substantial evidence in the record showed the employee suffered a pattern of hearing loss compatible with that caused by hazardous noise exposure, and substantial evidence also showed that the employee sustained repetitive exposure to KRS 342.0011(4) injurious noise in the workplace, including the employee’s final employment with the employer, meaning the employer was exclusively liable for KRS 342.7305(4) benefits. Greg's Constr. v. Keeton, 385 S.W.3d 420, 2012 Ky. LEXIS 124 ( Ky. 2012 ).

Cited in:

Mary Helen Coal Corp. v. Hensley, 237 Ky. 348 , 35 S.W.2d 533, 1931 Ky. LEXIS 603 ( Ky. 1931 ); Browning v. Moss Williams & Co., 306 Ky. 520 , 208 S.W.2d 495, 1948 Ky. LEXIS 593 ( Ky. 1948 ); Pioneer Coal Co. v. Sparks, 249 S.W.2d 725, 1952 Ky. LEXIS 844 ( Ky. 1952 ); Mullins v. Kentucky West Virginia Gas Co., 307 S.W.2d 169, 1957 Ky. LEXIS 70 ( Ky. 1957 ); Childers v. Stephenson, 320 S.W.2d 797, 1959 Ky. LEXIS 251 ( Ky. 1959 ); Kerns Bakery v. Hodges, 377 S.W.2d 88, 1964 Ky. LEXIS 485 ( Ky. 1964 ); Belknap Hardware & Mfg. Co. v. Brown, 402 S.W.2d 848, 1966 Ky. LEXIS 384 ( Ky. 1966 ); City Supply Co. v. Munday, 421 S.W.2d 569, 1967 Ky. LEXIS 63 ( Ky. 1967 ); Cabe v. Bush, 424 S.W.2d 585, 1968 Ky. LEXIS 462 ( Ky. 1968 ); Big Sandy Community Action Program v. Chaffins, 502 S.W.2d 526, 1973 Ky. LEXIS 79 ( Ky. 1973 ); Yocom v. United States Steel Corp., 566 S.W.2d 160, 1977 Ky. App. LEXIS 914 (Ky. Ct. App. 1977); Glass v. Holloway Constr. Co., 591 S.W.2d 712, 1979 Ky. App. LEXIS 497 (Ky. Ct. App. 1979); Mengel v. Hawaiian-Tropic Northwest & Cent. Distributors, Inc., 618 S.W.2d 184, 1981 Ky. App. LEXIS 252 (Ky. Ct. App. 1981); J. T. Nelson Co. v. Comstock, 636 S.W.2d 896, 1982 Ky. App. LEXIS 231 (Ky. Ct. App. 1982); Hammond v. Department for Human Resources Bureau for Social Ins., 652 S.W.2d 91, 1983 Ky. App. LEXIS 291 (Ky. Ct. App. 1983); Stovall v. Mullen, 674 S.W.2d 526, 1984 Ky. App. LEXIS 552 (Ky. Ct. App. 1984); Jefferson County Bd. of Education v. Miller, 744 S.W.2d 751, 1988 Ky. App. LEXIS 24 (Ky. Ct. App. 1988); Farris v. Huston Barger Masonry, Inc., 780 S.W.2d 611, 1989 Ky. LEXIS 102 ( Ky. 1989 ); Evansville Printing Corp. v. Sugg, 817 S.W.2d 455, 1991 Ky. App. LEXIS 116 (Ky. Ct. App. 1991); Coker v. Ash Trucking Co., 917 S.W.2d 183, 1996 Ky. App. LEXIS 21 (Ky. Ct. App. 1996); Johnson Controls, Inc. v. Russell, 95 S.W.3d 921, 2002 Ky. App. LEXIS 1850 (Ky. Ct. App. 2002); Toyota Motor Mfg. v. Lawson, — S.W.3d —, 2009 Ky. App. LEXIS 224 (Ky. Ct. App. 2009); Abel Verdon Constr. v. Rivera, 348 S.W.3d 749, 2011 Ky. LEXIS 116 ( Ky. 2011 ); James T. English Trucking v. Beeler, 375 S.W.3d 67, 2012 Ky. LEXIS 125 ( Ky. 2012 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Appeals to Kentucky Court of Appeals of Workers’ Compensation Decisions, § 102.00.

342.295. Safekeeping, transporting and return of original record of board.

The Court of Appeals may make such rule or order as it may deem necessary for the safekeeping, transporting and return of such original records of the Workers’ Compensation Board to the board when the judgment in the case becomes final, provided that a copy of the final judgment shall be returned with each record. When any appeal has become final the clerk of the Court of Appeals shall return such original record to the Workers’ Compensation Board, which shall safely keep the same. At all times thereafter such record shall remain a part of the record of the case in the Court of Appeals, though kept in the possession of the Workers’ Compensation Board.

History. 4937: amend. Acts 1948, ch. 152, § 3; 1954, ch. 222, § 4; 1987 (Ex. Sess.), ch. 1, § 36, effective January 4, 1988.

NOTES TO DECISIONS

Cited:

Cornett-Lewis Coal Co. v. Day, 312 Ky. 221 , 226 S.W.2d 951, 1950 Ky. LEXIS 622 ( Ky. 1950 ).

342.300. Continuation of award pending appeal — Suspension.

Upon motion of either party and a sufficient showing of reason and necessity therefor, the board, if an appeal is taken, may continue in force the award, judgment, or order appealed from, pending its decision of such appeal, but to be suspended upon the execution by the adverse party of a supersedeas bond for appeal to the Court of Appeals.

History. 4938: amend. Acts 1987 (Ex. Sess.), ch. 1, § 37, effective January 4, 1988.

NOTES TO DECISIONS

  1. Award in Force Pending Appeal.
  2. — Showing of Necessity Required.
  3. Evidence.
  4. Supersedeas Bond.
1. Award in Force Pending Appeal.

Upon sufficient showing of reason or necessity therefor, Court of Appeals may continue in force award pending its decision, notwithstanding supersedeas. Employers' Liability Assurance Corp. v. Gardner, 204 Ky. 216 , 263 S.W. 743, 1924 Ky. LEXIS 427 ( Ky. 1924 ).

This section means that once a Circuit Court grants a motion for the continuation of benefits based upon a sufficient showing of reason and necessity therefor, then the benefits allowed pending the Circuit Court’s decision are to continue in force during the appeal to the Court of Appeals, unless the adverse party executes a supersedeas bond. Smith v. Allied Tools & Supply Co., 583 S.W.2d 508, 1979 Ky. App. LEXIS 422 (Ky. Ct. App. 1979).

2. — Showing of Necessity Required.

The Circuit Court does not have the authority under this section to direct the continuation of payment of benefits pending an appeal to the Court of Appeals unless there is a sufficient showing of reason and necessity in the Circuit Court for such a continuation. Smith v. Allied Tools & Supply Co., 583 S.W.2d 508, 1979 Ky. App. LEXIS 422 (Ky. Ct. App. 1979).

3. Evidence.

Where the trial court’s decision to continue payments by the employer, pending appeal, under this section, was “ . . . . . based on the record herein . . . . . ” which revealed claimant to be totally disabled after having earned $300 per week prior to the accident, and having not had any income thereafter, a sufficient showing had been made to satisfy the requirements of this section. Smith v. Allied Tools & Supply Co., 583 S.W.2d 508, 1979 Ky. App. LEXIS 422 (Ky. Ct. App. 1979).

4. Supersedeas Bond.

The proper forum for filing of a supersedeas bond is the Workers' Compensation Board. Henry Vogt Machine Co. v. Scruggs, 769 S.W.2d 766, 1989 Ky. App. LEXIS 58 (Ky. Ct. App. 1989).

342.305. Enforcement by Circuit Court of agreement, order, decision, or award.

Any party in interest may file in the Circuit Court of the county in which the injury occurred a certified copy of a memorandum of agreement approved by the administrative law judge, or of an order or decision of the administrative law judge or board, or of an award of the administrative law judge unappealed from, or of an award of the board rendered upon an appeal whether or not there is a motion to reopen or review pending under KRS 342.125 . The court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same as though it had been rendered in a suit duly heard and determined by that court. Any such judgment, unappealed from or affirmed on appeal or modified in obedience to the mandate of the Court of Appeals, shall be modified to conform to any decision of the administrative law judge ending, diminishing, or increasing any weekly payment under the provisions of KRS 342.125 upon a presentation to it of a certified copy of such decision.

History. 4939: amend. Acts 1972, ch. 78, § 28; 1987 (Ex. Sess.), ch. 1, § 38, effective January 4, 1988; 1996 (1st Ex. Sess.), ch. 1, § 61, effective December 12, 1996; 2000, ch. 514, § 20, effective July 14, 2000.

Legislative Research Commission Note.

(4/22/94). The phrase “unappealed from, or of an award” has been restored to the first sentence of this statute to reflect the text of this statute as enacted by 1916 Ky. Acts ch. 33, sec. 56 (codified at K.S. § 4939) and reenacted as KRS 342.305 by 1942 Ky. Acts ch. 208, sec. 1. In the amendment of KRS 342.305 made by 1972 Ky. Acts ch. 78, sec. 28, this language was erroneously printed as “on appeal from, or an award” although no legislative change in this text was made by bracketed deletion and italicized insertion. This erroneous text was then brought into the Kentucky Revised Statutes through codification and retained in the 1987 amendment of the statute. Pursuant to KRS 7.136(1)(h), this manifest clerical or typographical error has been corrected. See also KRS 446.270 and 446.280 .

NOTES TO DECISIONS

  1. In General.
  2. Purpose.
  3. Application.
  4. Certified Copy.
  5. — Filing.
  6. — — Effect.
  7. Agreement or Award.
  8. — Sufficiency.
  9. — Attack.
  10. — Modification.
  11. — Finality.
  12. — Action Against Insurance Carrier.
  13. — Acceleration of Liability.
  14. Summons.
  15. — Notice.
  16. Parties.
  17. Judgment.
  18. — Compensation.
  19. — Credit.
  20. — Time of Making.
  21. — Immunity.
  22. — Res judicata.
  23. Forum.
  24. Time for Appeal.
  25. Periodic Compensation Award.
1. In General.

It is within the power of the Circuit Court to interpret the language of the Workers’ Compensation Board’s order according to prevailing law, or to correct any legal errors which the Board may have made in phrasing its order. W.T. Sistrunk & Co. v. Kells, 706 S.W.2d 417, 1986 Ky. App. LEXIS 1067 (Ky. Ct. App. 1986).

The Circuit Court had the authority to interpret the language of a 1978 award when the action was brought pursuant to this section, and was not required to enforce the award exactly as written. Any legal errors in an administrative order may always be corrected by a reviewing court. A reviewing court has the power to interpret the order’s language according to prevailing law, and to correct any legal errors. Palmore v. Swiney, 807 S.W.2d 950, 1990 Ky. App. LEXIS 145 (Ky. Ct. App. 1990).

2. Purpose.

The sole purpose of this section is to enforce the agreement, order, decision or award, if unappealed from, or affirmed on appeal. Stearns Coal & Lumber Co. v. Duncan, 271 Ky. 800 , 113 S.W.2d 436, 1938 Ky. LEXIS 55 ( Ky. 1938 ).

3. Application.

If an agreement has been approved by the board, then this section applies and proceedings may be had in the Circuit Court. Katterjohn v. Adams, 249 S.W.2d 952, 1952 Ky. LEXIS 890 ( Ky. 1952 ).

Where claimant failed to make the uninsured employer’s fund a party in an action against an employer and the special fund, and subsequent to the final award and return of execution nulla bona claimant proceeded against the uninsured fund, the court treated the proceeding as an independent action not brought under this section. Davis v. Comer, 532 S.W.2d 12, 1975 Ky. LEXIS 22 ( Ky. 1975 ).

4. Certified Copy.

The certified copy of the award may be attacked as being fraudulent. Heaston v. Berndsen-Jones, Inc., 438 S.W.2d 795, 1969 Ky. LEXIS 421 ( Ky. 1969 ).

5. — Filing.

Certified copy of agreement or award of Workers’ Compensation Board must be filed as required by this section; otherwise, there is no basis for a judgment enforcing same. Oldham v. Officers' Club of Ft. Knox, 245 S.W.2d 451, 1951 Ky. LEXIS 1261 ( Ky. 1951 ).

When an action to enforce an award or order of the board is instituted pursuant to this section, a judgment may not be rendered allowing compensation unless a certified copy of the award is filed in the court proceeding. Heaston v. Berndsen-Jones, Inc., 438 S.W.2d 795, 1969 Ky. LEXIS 421 ( Ky. 1969 ).

Where, in the court proceeding to collect past-due compensation, the claimant filed a certified copy of the award, it was presumed to represent the correct amount of compensation due. Heaston v. Berndsen-Jones, Inc., 438 S.W.2d 795, 1969 Ky. LEXIS 421 ( Ky. 1969 ).

6. — — Effect.

The effect of this section is that when a certified copy of an agreement which has been approved by the board is filed in the Circuit Court, judgment must be rendered in accordance therewith. Cornwell v. Commonwealth, 304 Ky. 182 , 200 S.W.2d 286, 1947 Ky. LEXIS 607 ( Ky. 1947 ).

7. Agreement or Award.

Order of board refusing to reopen case was not res adjudicata, in action against employer to enforce award, as to whether employer had paid full amount of agreed compensation. Stearns Coal & Lumber Co. v. Whalen, 266 Ky. 227 , 98 S.W.2d 499, 1936 Ky. LEXIS 635 ( Ky. 1936 ).

Judgment of Circuit Court affirming an award of the Workers’ Compensation Board was not a judgment for the payment of money, but merely a declaration that board acted within its powers, and therefore the employer had the right to withhold compensation payments during the pendency of a motion to reopen an award. Standard Products Co. v. Estes, 508 S.W.2d 771, 1974 Ky. LEXIS 629 ( Ky. 1974 ).

ALJ was required to reconsider sanctions against an employer who refused to pay for an employee’s shoulder surgery and who failed to file a medical dispute or a motion to reopen, considering the employer’s obligations under KRS 342.310(1) and 803 Ky. Admin. Regs. 25:012, § 2(1)(a). Richey v. Perry Arnold, Inc., 391 S.W.3d 705, 2012 Ky. LEXIS 30 ( Ky. 2012 ).

8. — Sufficiency.

Where insurance carrier, through its agents or attorneys, makes compensation agreement in name of employer and agreement is signed and approved by board, such agreement is sufficient on its face to authorize judgment absent affirmative showing that it was signed without authority. Holt Bros. Min. Co. v. Fisher, 255 Ky. 418 , 74 S.W.2d 469, 1934 Ky. LEXIS 248 ( Ky. 1934 ).

Where agreement, decision or award of Board is unappealed from or affirmed on appeal, Circuit Court can only enforce such agreement, decision or award, no matter how erroneous it is. Stearns Coal & Lumber Co. v. Duncan, 271 Ky. 800 , 113 S.W.2d 436, 1938 Ky. LEXIS 55 ( Ky. 1938 ). See Harlan Wallins Coal Corp. v. Hensley, 237 Ky. 310 , 35 S.W.2d 333, 1931 Ky. LEXIS 598 ( Ky. 1931 ); Holt Bros. Min. Co. v. Fisher, 255 Ky. 418 , 74 S.W.2d 469, 1934 Ky. LEXIS 248 ( Ky. 1934 ).

9. — Attack.

Where claimant signed settlement receipt which indicated on its face that full settlement amount had been paid, claimant could attack such receipt on ground it did not truly state facts or that it was obtained by fraud or misrepresentation. Stearns Coal & Lumber Co. v. Whalen, 266 Ky. 227 , 98 S.W.2d 499, 1936 Ky. LEXIS 635 ( Ky. 1936 ).

The Workers’ Compensation Board has continuing jurisdiction over the amounts payable under an award of reasonable medical expenses to a disabled claimant, and the Circuit Court is constrained to do no more than render judgment in accordance therewith; therefore, where the employer failed to present the issue of the reasonableness of the medical expenses to the Board, the employer was estopped from disputing the sums due and payable under the terms of the award which the disabled claimant sought to enforce in a Circuit Court action. Hale v. Nugent Sand Co., 657 S.W.2d 246, 1983 Ky. App. LEXIS 320 (Ky. Ct. App. 1983).

Any medical bills presented to the employer during the pendency of the proceedings before the Workers’ Compensation Board must be contested before the Board and thus could not be disputed later in Circuit Court in a proceeding to enforce the award. Westvaco Corp. v. Fondaw, 698 S.W.2d 837, 1985 Ky. LEXIS 282 ( Ky. 1985 ).

10. — Modification.

Even if erroneous, the Circuit Court has no option except to enforce the award as made. Travelers Ins. Co. v. Cole, 336 S.W.2d 583, 1960 Ky. LEXIS 344 ( Ky. 1960 ).

11. — Finality.

The procedure outlined in this section is permissible only where the award of the compensation board has become final. Owensboro Wagon Co. v. Adams, 309 Ky. 302 , 217 S.W.2d 637, 1949 Ky. LEXIS 689 ( Ky. 1949 ).

For an award to be reducible to judgment under the law, it must be final in the sense of being out of the hands of the Board and not pending on appeal. Scheurich & Fritz Roofing Co. v. De Witt, 424 S.W.2d 390, 1968 Ky. LEXIS 451 ( Ky. 1968 ).

Workers’ compensation board improperly granted a claimant’s request for temporary total disability (TTD) benefits, which were sought during the employer’s motion to reopen to contest its liability for surgery after a final award had been entered under KRS 342.305 , because the employer’s reopening under KRS 342.125(4) and KRS 342.020 did not encompass the TTD issue. Bartee v. Univ. Med. Ctr., 244 S.W.3d 91, 2008 Ky. LEXIS 18 ( Ky. 2008 ).

After an administrative law judge found claimant’s injuries to be work-related and entered an interlocutory order in accordance with KRS 342.305 directing her employer to pay all medical benefits, claimant failed to timely submit her Form 114 requests for reimbursement of medical expenses within 60 days of the date the expenses were incurred as required by 803 Ky. Admin. Regs. 25:096, § 11; therefore, her expenses were non-compensable. The Supreme Court of Kentucky rejected claimant’s argument that her obligation to present reimbursement requests did not arise until a final award was entered, because the interlocutory order was enforceable. Garno v. Solectron USA, 329 S.W.3d 301, 2010 Ky. LEXIS 293 ( Ky. 2010 ).

12. — Action Against Insurance Carrier.

This section does not authorize the entry of a summary, ex parte judgment against someone not named in the award, but a worker who has obtained a compensation award against his employer alone can bring a regular action at law, or regular process, against the employer’s insurance carrier to obtain judgment establishing the carrier’s liability. Fruchtenicht v. United States Fidelity & Guaranty Co., 451 S.W.2d 835, 1969 Ky. LEXIS 20 ( Ky. 1969 ).

13. — Acceleration of Liability.

Since the language of the settlement agreement stated that the Special Fund’s liability would not begin until the year 2005, the Circuit Court could not accelerate its liability. Clearly, the Circuit Court had authority to enforce the settlement agreement between the parties, but, the agreement did not provide that the Special Fund’s liability could be accelerated if a lump-sum settlement agreement was reached between the claimant and the employer. There is authority to accelerate the liability of the Special Fund in situations involving a unilateral settlement between a claimant and an employer if that settlement is entered into prior to a final decision by the Administrative Law Judge. However, there is no such authority to accelerate its liability when the settlement agreement is entered into after the original award is entered. Newburg v. Everidge, 840 S.W.2d 833, 1992 Ky. App. LEXIS 225 (Ky. Ct. App. 1992).

14. Summons.

Service of summons on the local attorney for foreign employer’s insurance carrier who was not agent of the employer does not constitute service on the employer. Main Line Engineering Constr. Service, Inc. v. Hutcheson, 428 S.W.2d 775, 1968 Ky. LEXIS 726 ( Ky. 1968 ).

15. — Notice.

Defendant employer is entitled to notice and opportunity to defend before entry of judgment. W. M. Ritter Lumber Co. v. Begley, 288 Ky. 481 , 156 S.W.2d 501, 1941 Ky. LEXIS 134 ( Ky. 1941 ).

16. Parties.

Where the Welfare fund had paid 80% of the hospital expenses of the claimant pursuant to contribution made by him to that fund and the welfare fund was obligated to pay this medical expense only if there were no other source available to the injured party, the fund was a party in interest. Bryan v. Henderson Electric Co., 566 S.W.2d 823, 1978 Ky. App. LEXIS 540 (Ky. Ct. App. 1978).

17. Judgment.

Employer may enjoin enforcement of judgment if the award on which it is based has, in fact, been satisfied. W. M. Ritter Lumber Co. v. Begley, 288 Ky. 481 , 156 S.W.2d 501, 1941 Ky. LEXIS 134 ( Ky. 1941 ).

A final award of workers’ compensation benefits has the same legal effect as a judgment, and may be enforced as such. Whittaker v. Smith, 998 S.W.2d 476, 1999 Ky. LEXIS 89 ( Ky. 1999 ).

18. — Compensation.

The Circuit Court may adjudge a recovery not only of past-due compensation instalments but of all future instalments subject to vacation or modification of the award. Stearns Coal & Lumber Co. v. Duncan, 271 Ky. 800 , 113 S.W.2d 436, 1938 Ky. LEXIS 55 ( Ky. 1938 ).

The court’s authority is limited to enforcement of the award which may not be extended or modified in any manner. Travelers Ins. Co. v. Cole, 336 S.W.2d 583, 1960 Ky. LEXIS 344 ( Ky. 1960 ).

19. — Credit.

The common measure of credit for payments voluntarily made is on a week-for-week basis, not on a dollar-for-dollar basis; therefore, the Circuit Court merely applied the prevailing law in enforcing the Workers’ Compensation Board’s order and award, as was its responsibility at law. W.T. Sistrunk & Co. v. Kells, 706 S.W.2d 417, 1986 Ky. App. LEXIS 1067 (Ky. Ct. App. 1986).

The circuit judge properly refused to allow a credit to employer for payments of compensation made to claimaint where employer failed to meet its burden of proof as to its right to the credit. Ephraim McDowell Regional Medical Ctr. v. Grigsby, 862 S.W.2d 331, 1993 Ky. App. LEXIS 116 (Ky. Ct. App. 1993).

20. — Time of Making.

An order of the Circuit Court enforcing an award of the Workers’ Compensation Board pursuant to this section may be made in vacation, such an order being within the purview of KRS 23.150 (repealed). Stearns Coal & Lumber Co. v. Roberts, 293 Ky. 75 , 168 S.W.2d 573, 1943 Ky. LEXIS 576 ( Ky. 1943 ).

Where a motion to reopen an award was filed with the board prior to the entry of judgment in the Circuit Court enforcing the original award, the Circuit Court was without authority to enter the judgment while the motion was pending. Armour & Co. v. Hardin, 432 S.W.2d 38, 1968 Ky. LEXIS 315 ( Ky. 1968 ).

21. — Immunity.

Under this section, in order for a judgment rendered pursuant to it to be immune from attack, the defendants must be notified of the institution of the suit and given an opportunity to defend. Main Line Engineering Constr. Service, Inc. v. Hutcheson, 428 S.W.2d 775, 1968 Ky. LEXIS 726 ( Ky. 1968 ).

22. — Res judicata.

Judgment awarding employee recovery only for past-due payments was not res judicata of his right to future payments. Stearns Coal & Lumber Co. v. Duncan, 271 Ky. 800 , 113 S.W.2d 436, 1938 Ky. LEXIS 55 ( Ky. 1938 ).

Dismissal of a motion to reopen a workers’ compensation claim arising from pneumoconiosis was proper because the worker had received no additional exposure to coal dust, and KRS 342.125(5)(a) required a worker seeking to reopen an award rendered under KRS 342.732 to make a preliminary showing that included a progression of pneumoconiosis, the development of respiratory impairment due the disease, and two additional years of continuous exposure to the hazards of the disease in Kentucky; the additional-exposure requirement was not arbitrary or capricious, and did not violate the Kentucky Constitution. Requiring additional exposure prior to reopening a final award is consistent with the principle of res judicata. Bolin v. T & T Mining, 231 S.W.3d 130, 2007 Ky. LEXIS 171 ( Ky. 2007 ).

23. Forum.

The sole forum for enforcement of an award is a Circuit Court and the Workers’ Compensation Board is without jurisdiction to modify an original award of medical expense. Pierce v. Russell Sportswear Corp., 586 S.W.2d 301, 1979 Ky. App. LEXIS 459 (Ky. Ct. App. 1979).

Where the Board erred in hearing a motion to enforce its own decree, and the order arising out of that hearing was then appealed to the Circuit Court, the court should have totally disregarded those erroneous actions by the Board and retired the action. Pierce v. Russell Sportswear Corp., 586 S.W.2d 301, 1979 Ky. App. LEXIS 459 (Ky. Ct. App. 1979).

Where a workers’ compensation claimant brought an action in the Circuit Court alleging the employer’s failure to pay a reasonable medical bill, the Circuit Court erred in not dismissing the proceeding for want of jurisdiction, because exclusive jurisdiction over the issue lay with the Workers' Compensation Board. Brown Badgett, Inc. v. Calloway, 675 S.W.2d 389, 1984 Ky. LEXIS 251 ( Ky. 1984 ).

Because an employee sought strict compliance with the terms of a workers’ compensation award, pursuant to KRS 342.305 , the sole forum for enforcing the terms of the award was a Circuit Court; therefore, the administrative law judge lacked jurisdiction under KRS 342.125 to deny the employer’s request to recoup an overpayment. Southeast Coal Co. v. Mansfield, 231 S.W.3d 122, 2007 Ky. LEXIS 163 ( Ky. 2007 ).

24. Time for Appeal.

In a workers’ compensation dispute between the Special Fund and the Uninsured Employers’ Fund in which the former appealed from a judgment and order, the Circuit Court erred in entertaining a suit which was not ripe for adjudication; as the Uninsured Fund’s duty to pay had not yet arisen, its actions before the Workers’ Compensation Board and Circuit Court were premature. Wells v. Blair, 736 S.W.2d 346, 1987 Ky. App. LEXIS 471 (Ky. Ct. App. 1987).

25. Periodic Compensation Award.

A claimant may sue in Circuit Court on a periodic compensation award and have judgment entered for a lump sum based on present value. After entering the judicial system, the administrative award may be dealt with according to traditional principles of jurisprudence. To require a claimant to serially enforce periodic payments is absurd. Even if the Circuit Court should enter a continuing judgment, repeated executions would be an onerous burden upon claimants who have suffered a loss of income and, under the Compensation Act, are entitled to quick and inexpensive reparation. Hereford v. Storms, 808 S.W.2d 819, 1990 Ky. App. LEXIS 172 (Ky. Ct. App. 1990).

Cited:

Conda Coal Co. v. Caldwell, 267 Ky. 774 , 103 S.W.2d 303, 1937 Ky. LEXIS 397 ( Ky. 1937 ); Travelers Ins. Co. v. Edwards, 301 Ky. 162 , 191 S.W.2d 221, 1945 Ky. LEXIS 714 (1945); Black Mountain Corp. v. Mullins, 302 Ky. 294 , 194 S.W.2d 528, 1946 Ky. LEXIS 6 57 ( Ky. 1946 ); Rice v. Conley, 419 S.W.2d 769, 1967 Ky. LEXIS 195 ( Ky. 1967 ); Davis v. Goodin, 639 S.W.2d 381, 1982 Ky. App. LEXIS 249 (Ky. Ct. App. 1982); Moss v. Holloway Constr. Co., 644 S.W.2d 331, 1982 Ky. LEXIS 326 ( Ky. 1982 ); Stovall v. Great Flame Coal Co., 684 S.W.2d 3, 1984 Ky. App. LEXIS 506 (Ky. Ct. App. 1984); Whittaker v. Hall, 132 S.W.3d 816, 2004 Ky. LEXIS 6 ( Ky. 2004 ); Greene v. Paschall Truck Lines, 239 S.W.3d 94, 2007 Ky. App. LEXIS 416 (Ky. Ct. App. 2007); Turner v. Bluegrass Tire Co., 331 S.W.3d 605, 2010 Ky. LEXIS 200 ( Ky. 2010 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Cetrulo, “Reopening” Under the Kentucky Workers’ Compensation Act, Vol. 50, No. 1, Winter 1985-86 Ky. Bench & B. 28.

Kentucky Law Journal.

Stewart, Reopening of Workmen’s Compensation Claims — Enforcement of Awards Pending Reopening Proceedings, 59 Ky. L.J. 164 (1970).

Kentucky Law Survey, Patterson, Workmen’s Compensation, 64 Ky. L.J. 307 (1975-76).

342.310. Assessment of cost of unreasonable proceedings — Restitution.

  1. If any administrative law judge, the board, or any court before whom any proceedings are brought under this chapter determines that such proceedings have been brought, prosecuted, or defended without reasonable ground, he or it may assess the whole cost of the proceedings which shall include actual expenses but not be limited to the following: court costs, travel expenses, deposition costs, physician expenses for attendance fees at depositions, attorney fees, and all other out-of-pocket expenses upon the party who has so brought, prosecuted, or defended them.
  2. If any administrative law judge, the board, or any court before whom any proceedings are brought under this chapter determines that a party has committed acts in violation of KRS 342.335(1) or (2), that party may be ordered to make restitution for any compensation paid as a result of the commission of such acts.

History. 4940: amend. Acts 1984, ch. 78, § 1, effective July 13, 1984; 1987 (Ex. Sess.), ch. 1, § 39, effective January 4, 1988; 1996, ch. 355, § 10, effective July 15, 1996; 1996 (1st Ex. Sess.), ch. 1, § 62, effective December 12, 1996; 2000, ch. 514, § 21, effective July 14, 2000.

NOTES TO DECISIONS

  1. Application.
  2. Whole Cost.
  3. Attorney Fees.
  4. Reasonable Grounds for Appeal.
  5. Delayed Payment.
  6. Frivolous Claim.
  7. Denial of medical benefits.
1. Application.

The assessment of costs for unreasonable proceedings applies to proceedings under workers’ compensation law and has no reference to costs of proceedings at common law between employer and employee. Beattyville Co. v. Sizemore, 203 Ky. 7 , 261 S.W. 620, 1924 Ky. LEXIS 834 ( Ky. 1924 ).

Since the claim administrator’s denial of the claim was based on reasonable grounds, the administrative law judge’s award of attorney fees and costs under KRS 342.310 was clearly erroneous. Ky. Associated Gen. Contrs. Self-Insurance Fund v. Tri State Crane Rental, Inc., 240 S.W.3d 644, 2007 Ky. App. LEXIS 334 (Ky. Ct. App. 2007).

Although the employer was not successful in challenging the Board’s determination, and the appellate court’s affirmance of that determination, that the employee was entitled to an award of future medical expenses benefits after the employee injured the employee’s shoulder but seemed to have healed after surgery, that did not mean the employer was entirely without recourse. Indeed, the employer was allowed under KRS 342.125(3) to dispute the compensability of future treatment that was unreasonable, unnecessary, or unrelated to the injury, and KRS 342.310(1) permitted either the employee or the employer to be sanctioned for prosecuting or defending a benefits dispute unreasonably. Kroger v. Ligon, 338 S.W.3d 269, 2011 Ky. LEXIS 68 ( Ky. 2011 ).

2. Whole Cost.

The term “whole cost” as used in this section does not include attorney’s fees; therefore, an injured employee was not entitled to recover his attorney’s fees even though the trial court had found that the workers’ compensation insurer’s defense of the action was without reasonable grounds. Federal Ins. Co. v. West, 628 S.W.2d 632, 1981 Ky. App. LEXIS 313 (Ky. Ct. App. 1981).

It is doubtful that the term “whole cost” as used in this section includes attorney’s fees, but in any event, assessment pursuant to this section is contingent upon a finding that the employee was forced to bring, prosecute or defend an action “without reasonable ground.” Mastin v. Liberal Markets, 674 S.W.2d 7, 1984 Ky. LEXIS 262 ( Ky. 1984 ) (decision under section prior to 1984 amendment).

There was no abuse of discretion by the trial court in assessing the whole costs of the proceedings upon the employer where it was not reasonable for the employer to argue that a patently legal measure was a factual determination and it was further not reasonable for the employer to argue that the prevailing law required a certain interpretation, where the employer not only ignored established legal authority to the contrary but was unable to cite a single authority to justify its argument. W.T. Sistrunk & Co. v. Kells, 706 S.W.2d 417, 1986 Ky. App. LEXIS 1067 (Ky. Ct. App. 1986).

Where the law was clear that the Life Table had been judicially adopted by Kentucky courts, the Circuit Court ruled correctly that the Special Fund’s refusal to pay benefits was unreasonable, and it required the appellant to pay the costs of the proceeding including the attorney fees. Palmore v. Swiney, 807 S.W.2d 950, 1990 Ky. App. LEXIS 145 (Ky. Ct. App. 1990).

3. Attorney Fees.

Where employer who was making compensation payments discovered that employee had reached a settlement for damages with third-party tort-feasor in products liability case and thereupon employer suspended such payments and employee brought suit to require employer to continue payment of benefits, employee was not entitled to award for attorney’s fees since employer’s action in suspending could not be classified as groundless. Mastin v. Liberal Markets, 674 S.W.2d 7, 1984 Ky. LEXIS 262 ( Ky. 1984 ) (decision under section prior to 1984 amendment).

Because a worker in a claim for compensation case actually pays his own attorney’s fee, neither the employer nor the Special Fund has standing to question the attorney’s fee absent unusual circumstances. Peabody Coal Co. v. Goforth, 857 S.W.2d 167, 1993 Ky. LEXIS 87 ( Ky. 1993 ).

Regardless of whether a fee may be otherwise awarded except for the successful prosecution of the original claim for income benefits (KRS 342.320(2)) or for a reopening in which the worker’s award is increased (KRS 342.320(6) (now (7))), where an attorney’s fee has been awarded pursuant to this section and where there is an additional underlying issue of whether, absent the application of this section, the award of an attorney’s fee was authorized, the attorney is a necessary party to an appeal concerning whether the application of this section was proper. Peabody Coal Co. v. Goforth, 857 S.W.2d 167, 1993 Ky. LEXIS 87 ( Ky. 1993 ).

Where neither the Worker’s Compensation Board nor the Court of Appeals believed that administrative law judge’s (ALJ) decision to award costs and attorney’s fees under this section constituted an abuse of discretion and since appellant employer presented no compelling evidence that the decision was grossly unfair or unreasonable and that such appeal was frivolous and so lacking in merit that it should not have been taken, the Supreme Court would not reverse the decision to award such fees. Peabody Coal Co. v. Goforth, 857 S.W.2d 167, 1993 Ky. LEXIS 87 ( Ky. 1993 ).

Denial of a request for an attorney’s fee award from an employer in its motion to reopen a worker’s compensation settlement was proper because KRS 342.320 allowed attorney fees only from the employee or from his recovery absent grounds for sanctions; the administrative law judge found that the employer had reasonable grounds for reopening and that ruling was not appealed. Rager v. Crawford & Co., 2007 Ky. App. LEXIS 226 (Ky. Ct. App. July 20, 2007), aff'd, 256 S.W.3d 4, 2008 Ky. LEXIS 156 ( Ky. 2008 ).

Because the employer’s arguments challenging an award of temporary total disability benefits were unreasonable, the decision requiring the employer to pay 18% interest on past due temporary total disability payments and attorney’s fees was not an abuse of discretion. Officeware v. Jackson, 247 S.W.3d 887, 2008 Ky. LEXIS 60 ( Ky. 2008 ).

Denial of a claim for attorney’s fees by a worker and his attorney in a workers’ compensation case was proper because KRS 342.310 provided the only statutory basis to require the employer to pay the worker’s attorney’s fees, but as the administrative law judge found “reasonable grounds” for the employer’s challenge, the requirements of KRS 342.310 were not met. Rager v. Crawford & Co., 256 S.W.3d 4, 2008 Ky. LEXIS 156 ( Ky. 2008 ).

4. Reasonable Grounds for Appeal.

Where an appeal is based on a challenge to a finding for the claimant by the Workers’ Compensation Board that is clearly supported by substantive evidence of probative value, there is no reasonable ground for the appeal. Woolum v. Woolum, 684 S.W.2d 20, 1984 Ky. App. LEXIS 571 (Ky. Ct. App. 1984).

Where court found claimant’s petition for review meritorious, it was not unreasonable and sanctions would not be imposed against claimant pursuant to this section. Kendrick v. Bailey Vault Co., 944 S.W.2d 147, 1997 Ky. App. LEXIS 34 (Ky. Ct. App. 1997), limited, Coomer v. Phelps, 2004 Ky. App. Unpub. LEXIS 275 (Ky. Ct. App. Mar. 12, 2004), limited, Coomer v. Phelps, 172 S.W.3d 389, 2005 Ky. LEXIS 298 ( Ky. 2005 ).

5. Delayed Payment.

The exclusive remedy provided by the Workers’ Compensation Act is not voided by the employer’s delay in payment of medical bills of the employee, because this section provides a remedy for untimely or delayed payments, and the Legislature has specified that the only exception to the exclusive remedy is for willful and unprovoked physical aggression. Zurich Ins. Co. v. Mitchell, 712 S.W.2d 340, 1986 Ky. LEXIS 275 ( Ky. 1986 ).

6. Frivolous Claim.

Filing a subsequent claim after a finding on the merits upon the same proof and involving the same parties does not deserve close scrutiny by an administrative law judge and under proper circumstances may constitute a frivolous claim. Pikeville Coal Company/Chisholm Coal Co. v. Sullivan, 895 S.W.2d 574, 1995 Ky. LEXIS 42 ( Ky. 1995 ).

Reference in KRS 342.125(3) to the original award or order granting or denying benefits refers to the original award and any subsequent order granting or denying benefits; a premature motion to reopen is barred by KRS 342.320 and KRS 342.310 , and CR 11, which deter frivolous motions. Hall v. Hospitality Res., Inc., 276 S.W.3d 775, 2008 Ky. LEXIS 288 ( Ky. 2008 ).

7. Denial of medical benefits.

ALJ was required to reconsider sanctions against an employer who refused to pay for an employee’s shoulder surgery and who failed to file a medical dispute or a motion to reopen, considering the employer’s obligations under KRS 342.310(1) and 803 Ky. Admin. Regs. 25:012, § 2(1)(a). Richey v. Perry Arnold, Inc., 391 S.W.3d 705, 2012 Ky. LEXIS 30 ( Ky. 2012 ).

Because the insurance company did not pay the employee temporary total disability benefits, did not pay income benefits to the employee, and did not appear in the action to assert any defense to payment until after the administrative law judge’s opinion and award, the ALJ did not err in assessing sanctions against the insurance company under KRS 342.310(1). Dallas Nat'l Ins. Co. v. Board, 2012 Ky. App. LEXIS 64 (Ky. Ct. App. Apr. 13, 2012), aff'd, 2013 Ky. Unpub. LEXIS 36 (Ky. June 20, 2013).

Cited:

Hale v. Nugent Sand Co., 657 S.W.2d 246, 1983 Ky. App. LEXIS 320 (Ky. Ct. App. 1983); Westvaco Corp. v. Fondaw, 698 S.W.2d 837, 1985 Ky. LEXIS 2 82 ( Ky. 1985 ); Roberts v. Estep, 845 S.W.2d 544, 1993 Ky. LEXIS 2 ( Ky. 1993 ); Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 2003 Ky. LEXIS 86 ( Ky. 2003 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Pearlman, Workplace Injuries: Medical Benefits, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 27.

Kentucky Law Journal.

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Northern Kentucky Law Review.

King, Workers’ Compensation Update 1992-1993, 21 N. Ky. L. Rev. 329 (1994).

342.315. Medical evaluations by university medical schools and “B” readers — Procedures — Report — Payment of costs — Performance assessment of medical schools — Use of telehealth.

  1. For workers who have had injuries or occupational hearing loss, the commissioner shall contract with the University of Kentucky and the University of Louisville medical schools to evaluate workers. For workers who have become affected by occupational diseases, the commissioner shall contract with the University of Kentucky and the University of Louisville medical schools, or other physicians otherwise duly qualified as "B" readers who are licensed in the Commonwealth and are board-certified pulmonary specialists. Referral for evaluation may be made whenever a medical question is at issue.
  2. The physicians and institutions performing evaluations pursuant to this section shall render reports encompassing their findings and opinions in the form prescribed by the commissioner. Except as otherwise provided in KRS 342.316 , the clinical findings and opinions of the designated evaluator shall be afforded presumptive weight by administrative law judges and the burden to overcome such findings and opinions shall fall on the opponent of that evidence. When administrative law judges reject the clinical findings and opinions of the designated evaluator, they shall specifically state in the order the reasons for rejecting that evidence.
  3. The commissioner or an administrative law judge may, upon the application of any party or upon his own motion, direct appointment by the commissioner, pursuant to subsection (1) of this section, of a medical evaluator to make any necessary medical examination of the employee. Such medical evaluator shall file with the commissioner within fifteen (15) days after such examination a written report. The medical evaluator appointed may charge a reasonable fee not exceeding fees established by the commissioner for those services.
  4. Within thirty (30) days of the receipt of a statement for the evaluation, the employer or carrier shall pay the cost of the examination. Upon notice from the commissioner that an evaluation has been scheduled, the insurance carrier shall forward within seven (7) days to the employee the expenses of travel necessary to attend the evaluation at a rate equal to that paid to state employees for travel by private automobile while conducting state business.
  5. Upon claims in which it is finally determined that the injured worker was not the employee at the time of injury of an employer covered by this chapter, the special fund shall reimburse the carrier for any evaluation performed pursuant to this section for which the carrier has been erroneously compelled to make payment.
  6. Not less often than annually the designee of the secretary of the Cabinet for Health and Family Services shall assess the performance of the medical schools and render findings as to whether evaluations conducted under this section are being rendered in a timely manner, whether examinations are conducted in accordance with medically recognized techniques, whether impairment ratings are in conformity with standards prescribed by the “Guides to the Evaluation of Permanent Impairment,” and whether coal workers’ pneumoconiosis examinations are conducted in accordance with the standards prescribed in this chapter.
  7. The General Assembly finds that good public policy mandates the realization of the potential advantages, both economic and effectual, of the use of telehealth. The commissioner may, to the extent that he or she finds it feasible and appropriate, require the use of telehealth, as defined in KRS 304.17A-005 , in the independent medical evaluation process required by this chapter.

HISTORY: 4941: amend. Acts 1944, ch. 82, § 2; 1946, ch. 23, § 3; 1946, ch. 37, § 8; 1948, ch. 151, § 3; 1950, ch. 188, § 2; 1956, ch. 77, § 11; 1987 (Ex. Sess.), ch. 1, § 40, effective January 4, 1988; 1996, ch. 355, § 11, effective July 15, 1996; 1996 (1st Ex. Sess.), ch. 1, § 15, effective December 12, 1996; 1998, ch. 426, § 566, effective July 15, 1998; 2000, ch. 514, § 22, effective July 14, 2000; 2001, ch. 57, § 2, effective June 21, 2001; 2002, ch. 340, § 1, effective July 15, 2002; 2005, ch. 99, § 611, effective June 20, 2005; 2007, ch. 24, § 29, effective June 26, 2007; 2010, ch. 24, § 1815, effective July 15, 2010; 2010, ch. 90, § 3, effective July 15, 2010; 2018 ch. 40, 2018, ch. 40, § 8, effective July 14, 2018; 2018 ch. 187, § 6, effective July 1, 2019.

Legislative Research Commission Notes.

(7/1/2019). This statute was amended by 2018 Ky. Acts chs. 40 and 187, which do not appear to be in conflict and have been codified together.

Compiler’s Notes.

The following decisions decided before 1996 were decided prior to the amendment by Acts 1996 (Ex. Sess.), ch. 1, § 15.

NOTES TO DECISIONS

  1. In General.
  2. Construction.
  3. Appointment.
  4. Physician's Testimony.
  5. Fees and Expenses.
  6. Report.
  7. — Review.
  8. — Presumption.
1. In General.

There is no statutory authority for the board receiving expert advice or the assistance of anyone in reaching its conclusions other than under this section. Black Mountain Corp. v. Williams, 301 Ky. 784 , 193 S.W.2d 416, 1946 Ky. LEXIS 572 ( Ky. 1946 ).

KRS 342.315 was enacted to obtain clinical findings and opinions from unbiased medical experts; it does not authorize the university medical schools to subcontract with private physicians to perform evaluations. A physician who is not affiliated with a university medical school is not a proper evaluator under KRS 342.315 , and his or her report is not admissible for the purposes of KRS 342.315. Morrison v. Home Depot, 197 S.W.3d 531, 2006 Ky. LEXIS 128 ( Ky. 2006 ).

2. Construction.

KRS 342.0015 expresses a clear Legislative intent for this section and KRS 342.316(3)(b)4.b. to apply to all claims pending before an arbitrator or administrative law judge on or after December 12, 1996. Magic Coal Co. v. Fox, 19 S.W.3d 88, 2000 Ky. LEXIS 60 ( Ky. 2000 ).

While KRS 342.315 permitted a university evaluation whenever a medical question was at issue, it evinced no intent to depart from the regulations that govern the taking of proof; thus, the Administrative Law Judge erred by ordering a university evaluation after taking the claim under submission rather than deciding it based on the evidence of record at that time. Maxx v. Blagg, 274 S.W.3d 436, 2008 Ky. LEXIS 315 ( Ky. 2008 ).

3. Appointment.

There is no limitation in this section on the board’s authority to designate physicians. Hardaway Contracting Co. v. Mershall, 362 S.W.2d 491, 1962 Ky. LEXIS 258 ( Ky. 1962 ).

This section governs the appointment of disinterested physicians when the special fund is not involved. McCown v. Hellier Elkhorn Coal Co., 399 S.W.2d 719, 1966 Ky. LEXIS 475 ( Ky. 1966 ).

The appointment of physicians under this section is discretionary and the board’s discretion in overruling a motion for such examination will not be interfered with by the court unless there is a clear and flagrant abuse of such discretion. Davis v. Island Creek Coal Co., 446 S.W.2d 563, 1969 Ky. LEXIS 125 ( Ky. 1969 ).

The board exercised its discretion when it failed to specifically rule on the claimant’s motion for the appointment of a physician, but it would have been better practice for the board to have specifically ruled on the motion. Davis v. Island Creek Coal Co., 446 S.W.2d 563, 1969 Ky. LEXIS 125 ( Ky. 1969 ).

The fact that the examining physician mentioned a healed fractured rib and the claimant by affidavit stated that to his knowledge he had never had a rib injury was not sufficient to require the board to appoint a second doctor. Baker v. Export Coal Co., 451 S.W.2d 661, 1970 Ky. LEXIS 417 ( Ky. 1970 ).

Where one specialist found emphysema and no chronic bronchitis and another specialist found chronic bronchitis but no emphysema, but both found no evidence of pneumoconiosis, the board did not abuse its discretion or violate any constitutional standards in appointing an independent physician to examine the claimant and report findings to the board, rather than disposing of the claim on the basis of evidence previously introduced, or in closing the hearing without permitting further evidence in rebuttal. Thacker v. Republic Steel Corp., 484 S.W.2d 832, 1972 Ky. LEXIS 150 ( Ky. 1972 ).

Administrative law judge’s opinion finding a doctor to be a qualified “university evaluator” under KRS 342.315 was supported by substantial evidence because the doctor testified that he had been a professor at the University of Louisville Medical School for over 45 years, and the worker was evaluated within the span of the doctor’s appointment; although the evaluation was assigned to the doctor through a private medical clinic rather than through a university, the doctor was sufficiently “affiliated” with the medical school to be able to perform a university evaluation. Morrison v. Home Depot, 279 S.W.3d 172, 2009 Ky. App. LEXIS 19 (Ky. Ct. App. 2009).

Workers' Compensation Board erred in affirming an award by an administrative law judge (ALJ) of permanent total disability and medical benefits to an employee for bladder cancer allegedly caused by his exposure to a certain chemical compound during his employment because the Workers' Compensation Commissioner failed to refer the employee for a medical examination by a university evaluator as required by both statue and regulation, the ALJ relied solely on the employee's and his physician's testimony for his conclusion that the bladder cancer was caused by a work-related condition, the employee's treating physician, could not serve as an unbiased medical expert, and nothing in the statute permitted an avoidance of the legislative mandate. Tema Isenmann, Inc. v. Miller, 2016 Ky. App. LEXIS 135 (Ky. Ct. App.), sub. op., 2016 Ky. App. Unpub. LEXIS 915 (Ky. Ct. App. Aug. 5, 2016).

4. Physician's Testimony.

Where board appointed an independent physician to make findings as to the nature, cause and probable duration of the disability of the claimant and, after his report was made reached a conclusion similar to that which he reached, the board did not delegate its fact-finding responsibility to the physician. Jewell Ridge Coal Co. v. McDowell, 392 S.W.2d 59, 1965 Ky. LEXIS 264 ( Ky. 1965 ).

The findings and conclusions of a physician or physicians acting pursuant to this section are not conclusive and the board has the option, within reason, to reject them. Lewis v. United States Steel Corp., 398 S.W.2d 490, 1966 Ky. LEXIS 492 ( Ky. 1966 ).

While board is not bound by findings of physician appointed under this section, the evidence has as much weight as other medical evidence in the case. Woolum v. Miners Memorial Hospital Asso., 417 S.W.2d 232, 1967 Ky. LEXIS 249 ( Ky. 1967 ).

Where inquiry was made of the appointed doctor as to whether the disease the claimant had was such that the population generally was exposed, notwithstanding occupation, and he answered that it was, the board could consider the statement as significant. Young v. Dale, 446 S.W.2d 288, 1969 Ky. LEXIS 116 ( Ky. 1969 ).

Where the opinions of the claimant’s physician and the physician appointed by the board were irreconcilable, the board exercised its prerogative as a fact finder and chose not to be completely persuaded by either point of view. Merit Clothing Co. v. Jewell, 459 S.W.2d 88, 1970 Ky. LEXIS 112 ( Ky. 1970 ).

The probative value of evidence is not determined by the number of doctors who testify before the board, and the fact that a doctor is a board-certified specialist goes only to the weight to be given his testimony, so that the court is not required to disregard the testimony of a doctor if not so certified. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 1974 Ky. LEXIS 283 ( Ky. 1974 ).

It is the responsibility of the Workers’ Compensation Board to translate functional disability into the percentage of occupational disability, and functional disability is a medical question but occupational disability is not. Purex Corporation/Ferry-Morse Seed Co. v. Bryant, 590 S.W.2d 334, 1979 Ky. App. LEXIS 483 (Ky. Ct. App. 1979).

Administrative law judge (ALJ) was authorized to weigh a university evaluator’s testimony and disregard it; the ALJ had a reasonable basis for rejecting the university evaluator’s conclusion that the claimant’s hearing loss was related to his work. Bright v. Am. Greetings Corp., 62 S.W.3d 381, 2001 Ky. LEXIS 219 ( Ky. 2001 ).

Although KRS 342.315(2) required an administrative law judge in a workers’ compensation claim to afford a university evaluator’s clinical findings and opinions presumptive weight, there was nothing in the statutes and regulations that required special presumptive consideration for the findings and conclusions of a claimant’s treating physician. Sweeney v. King's Daughters Med. Ctr., 260 S.W.3d 829, 2008 Ky. LEXIS 175 ( Ky. 2008 ).

5. Fees and Expenses.

This section only provides for payment of fees and traveling expenses of physician appointed for purpose of examining employee and does not require the employer to pay traveling expenses of employee in going to and from such examination. High Splint Coal Co. v. Campbell, 222 Ky. 591 , 1 S.W.2d 1051, 1928 Ky. LEXIS 210 ( Ky. 1928 ).

Administrative law judge had subject matter jurisdiction to award a workers’ compensation claimant’s wife compensation under KRS 342.315 as KRS 342.020(1) entitled the claimant to caregiver services, and nothing required the wife to be made a party. Speedway/Super Am. v. Elias, 285 S.W.3d 722, 2009 Ky. LEXIS 156 ( Ky. 2009 ).

6. Report.

The Board was justified in denying benefits to the claimant for failure to prove he was suffering from a compensable occupational disease where the physician’s report indicated that the claimant could suffer from the same disease regardless of his occupation. Ward v. Republic Steel Corp., 460 S.W.2d 348, 1970 Ky. LEXIS 585 ( Ky. 1970 ).

Objections to the report of the appointed medical panel that the doctor did not take into consideration the type of accident and manner of injury and did not determine vocational disability were specific enough to authorize board to ignore finding of panel and examine the entire record. Princess Coals, Inc. v. Evans, 475 S.W.2d 639, 1972 Ky. LEXIS 409 ( Ky. 1972 ).

7. — Review.

Where the claimant filed objections stating that the finding of no existing disability was contrary to the case history and that the conclusions of the report were inconsistent with the findings of two other appointed physicians, the objections were sufficiently specific to open the report to review. Thompson v. General Electric Co., 461 S.W.2d 84, 1970 Ky. LEXIS 608 ( Ky. 1970 ).

Since the administrative law judge (ALJ) did not give a university evaluator’s report presumptive weight or state his reasons for rejecting it under KRS 342.315(2) because he was unaware of it, and since KRS 342.281 would not have permitted him to reconsider the merits in light of the evaluator’s report, the claimant did not have to petition the ALJ for reconsideration to preserve the error. Bullock v. Goodwill Coal Co., 214 S.W.3d 890, 2007 Ky. LEXIS 27 ( Ky. 2007 ).

8. — Presumption.

Subsection (2) creates a rebuttable presumption with regard to the clinical findings and opinions of a university evaluator, the procedural effect of which is governed by KRE 301. Magic Coal Co. v. Fox, 19 S.W.3d 88, 2000 Ky. LEXIS 60 ( Ky. 2000 ).

The clinical findings and opinions of a university evaluator constitute substantial evidence with regard to medical questions which, if uncontradicted, may not be disregarded by the fact-finder; however, this presumption neither shifts the risk of nonpersuasion to the defendant nor raises the bar with regard to the claimant’s burden of persuasion. Magic Coal Co. v. Fox, 19 S.W.3d 88, 2000 Ky. LEXIS 60 ( Ky. 2000 ).

Cited:

Bell Coal Co. v. Jackson, 298 Ky. 238 , 182 S.W.2d 775, 1944 Ky. LEXIS 884 ( Ky. 1944 ); Jeane Francis Coal Co. v. Fields, 310 Ky. 122 , 220 S.W.2d 107, 1949 Ky. LEXIS 865 (1949); General Refractories Co. v. Henderson, 313 Ky. 613 , 232 S.W.2d 846, 1950 Ky. LEXIS 910 ( Ky. 1950 ); Pfoff v. Osborne, 269 S.W.2d 710, 1954 Ky. LEXIS 1011 ( Ky. 1954 ); Baier v. Schnell, 323 S.W.2d 587, 1959 Ky. LEXIS 334 ( Ky. 1959 ); Sergent v. J. P. Honeycutt Coal Co., 365 S.W.2d 734, 1963 Ky. LEXIS 225 ( Ky. 1963 ); Bethlehem Mines Corp. v. Davis, 368 S.W.2d 176, 1963 Ky. LEXIS 37 ( Ky. 1963 ); Thompson v. Mayflower Coal Co., 379 S.W.2d 459, 1964 Ky. LEXIS 241 ( Ky. 1964 ); Messer v. Drees, 382 S.W.2d 209, 1964 Ky. LEXIS 340 ( Ky. 1964 ); Jewell Ridge Coal Co. v. McDowell, 392 S.W.2d 59, 1965 Ky. LEXIS 264 ( Ky. 1965 ); Belknap Hardware & Mfg. Co. v. Brown, 402 S.W.2d 848, 1966 Ky. LEXIS 384 ( Ky. 1966 ); Tutor Key Coal Co. v. Daniel, 463 S.W.2d 932, 1971 Ky. LEXIS 598 ( Ky. 1971 ); Young v. Wright, 474 S.W.2d 76, 1971 Ky. LEXIS 85 ( Ky. 1971 ); McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 1974 Ky. LEXIS 283 ( Ky. 1974 ); Greene v. Paschall Truck Lines, 239 S.W.3d 94, 2007 Ky. App. LEXIS 416 (Ky. Ct. App. 2007); Durham v. Peabody Coal Co., 272 S.W.3d 192, 2008 Ky. LEXIS 240 ( Ky. 2008 ); Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

Research References and Practice Aids

Kentucky Law Journal.

Murchison, Treating Physicians as Expert Witnesses in Compensation Systems: The Public Health Connection, 90 Ky. L.J. 891 (2001-02).

Northern Kentucky Law Review.

Kemp & Kemp, Kentucky Workers’ Compensation Law Update: Issues Facing Employers, Employees, Medical Providers, Insurers and Practitioners as House Bill 1 Continues to Evolve, 26 N. Ky. L. Rev. 67 (1999).

342.316. Liability of employer and previous employers for occupational disease — Claims procedure — Administrative regulations — Time limitations on claims — Determination of liable employer — Audit — Amount of compensation — Effect of concluded coal workers’ pneumoconiosis claim.

    1. The employer liable for compensation for occupational disease shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease. During any period in which this section is applicable to a coal mine, an operator who acquired it or substantially all of its assets from a person who was its operator on and after January 1, 1973, shall be liable for, and secure the payment of, the benefits which would have been payable by the prior operator under this section with respect to miners previously employed in the mine if it had not been acquired by such later operator. At the same time, however, this subsection does not relieve the prior operator of any liability under this section. Also, it does not affect whatever rights the later operator might have against the prior operator. (1) (a) The employer liable for compensation for occupational disease shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease. During any period in which this section is applicable to a coal mine, an operator who acquired it or substantially all of its assets from a person who was its operator on and after January 1, 1973, shall be liable for, and secure the payment of, the benefits which would have been payable by the prior operator under this section with respect to miners previously employed in the mine if it had not been acquired by such later operator. At the same time, however, this subsection does not relieve the prior operator of any liability under this section. Also, it does not affect whatever rights the later operator might have against the prior operator.
    2. The time of the beginning of compensation payments shall be the date of the employee’s last injurious exposure to the cause of the disease, or the date of actual disability, whichever is later.
  1. The procedure with respect to the giving of notice and determination of claims in occupational disease cases and the compensation and medical benefits payable for disability or death due to the disease shall be the same as in cases of accidental injury or death under the general provisions of this chapter, except that notice of claim shall be given to the employer as soon as practicable after the employee first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise the employee that he or she has contracted the disease, or a diagnosis of the disease is first communicated to him or her, whichever shall first occur.
  2. The procedure for filing occupational disease claims shall be as follows:
    1. The application for resolution of claim shall set forth the complete work history of the employee with a concise description of injurious exposure to a specific occupational disease, together with the name and addresses of the employer or employers with the approximate dates of employment. The application shall also include at least one (1) written medical report supporting his or her claim. This medical report shall be made on the basis of clinical or X-ray examination performed in accordance with accepted medical standards and shall contain full and complete statements of all examinations performed and the results thereof. The report shall be made by a duly-licensed physician. The commissioner shall promulgate administrative regulations which prescribe the format of the medical report required by this section and the manner in which the report shall be completed.
      1. For coal-related occupational pneumoconiosis claims, each clinical examination shall include a chest X-ray interpretation by a National Institute of Occupational Safety and Health (NIOSH) certified “B” reader. The chest X-ray upon which the report is made shall be filed with the application as well as spirometric tests when pulmonary dysfunction is alleged.
      2. For other compensable occupational pneumoconiosis claims, each clinical examination shall include a chest X-ray examination and appropriate pulmonary function tests.
    2. To be admissible, medical evidence offered in any proceeding under this chapter for determining a claim for occupational pneumoconiosis resulting from exposure to coal dust shall comply with accepted medical standards as follows:
      1. Chest X-rays shall be of acceptable quality with respect to exposure and development and shall be indelibly labeled with the date of the X-ray and the name and Social Security number of the claimant. Physicians’ reports of X-ray interpretations shall: identify the claimant by name and Social Security number; include the date of the X-ray and the date of the report; classify the X-ray interpretation using the latest ILO Classification and be accompanied by a completed copy of the latest ILO Classification report. Only interpretations by National Institute of Occupational Safety and Health (NIOSH) certified “B” readers shall be admissible.
      2. Spirometric testing shall be conducted in accordance with the standards recommended in the “Guides to the Evaluation of Permanent Impairment” and the 1978 ATS epidemiology standardization project with the exception that the predicted normal values for lung function shall not be adjusted based upon the race of the subject. The FVC or the FEV1 values shall represent the largest of such values obtained from three (3) acceptable forced expiratory volume maneuvers as corrected to BTPS (body temperature, ambient pressure and saturated with water vapor at these conditions) and the variance between the two (2) largest acceptable FVC values shall be either less than five percent (5%) of the largest FVC value or less than one hundred (100) milliliters, whichever is greater. The variance between the two (2) largest acceptable FEV1 values shall be either less than five percent (5%) of the largest FEV1 value or less than one hundred (100) milliliters, whichever is greater. Reports of spirometric testing shall include a description by the physician of the procedures utilized in conducting such spirometric testing and a copy of the spirometric chart and tracings from which spirometric values submitted as evidence were taken. If it is shown that the spirometric testing is not valid due to inadequate cooperation or poor effort on the part of the claimant, the claimant’s right to take or prosecute any proceedings under this chapter shall be suspended until the refusal or obstruction ceases. No compensation shall be payable for the period during which the refusal or obstruction continues.
      3. The commissioner shall promulgate administrative regulations pursuant to KRS Chapter 13A as necessary to effectuate the purposes of this section. The commissioner shall periodically review the applicability of the spirometric test values contained in the “Guides to the Evaluation of Permanent Impairment” and may by administrative regulation substitute other spirometric test values which are found to be more closely representative of the normal pulmonary function of the coal mining population.
      4. The procedure for determination of occupational disease claims shall be as follows:
        1. Immediately upon receipt of an application for resolution of claim, the commissioner shall notify the responsible employer and all other interested parties and shall furnish them with a full and complete copy of the application.
        2. The commissioner shall assign the claim to an administrative law judge and shall promptly refer the employee to a duly qualified “B” reader physician who is licensed in the Commonwealth and is a board-certified pulmonary specialist as set forth pursuant to KRS 342.315 and 342.794(1). The report from this examination shall be provided to all parties of record. The employee shall not be referred by the commissioner for examination within two (2) years following any prior referral for examination for the same disease.
        3. The commissioner shall develop a procedure to annually audit the performance of physicians and facilities that are selected to perform examinations pursuant to this section. The audit shall include an evaluation of the physician and facility with respect to the timeliness and completeness of the reports and the frequency at which the physician’s classification of an X-ray differs from those of the other physicians of that X-ray. The commissioner shall remove a physician or facility from selection consideration if the physician or facility consistently renders incomplete or untimely reports or if the physician’s interpretations of X-rays are not in conformity with the readings of other physicians of record at least fifty percent (50%) of the time. The report required under this subdivision shall be provided to the Interim Joint Committee on Economic Development and Workforce Investment on or before July 1, 2019, and on or before July 1 of each year thereafter.
        4. In coal workers’ pneumoconiosis claims, if the physician selected by the commissioner interprets an X-ray as positive for complicated coal workers’ pneumoconiosis, the commissioner shall refer the employee to the facility at which the claimant was previously evaluated for a computerized tomography scan in order to verify the findings. The computerized tomography scan shall be interpreted by the facility and a report shall be filed with the commissioner. The employer, insurer, or payment obligor shall pay the cost of the examination pursuant to the medical fee schedule. The administrative law judge may rely upon the findings in the report in accepting or rejecting ILO radiographic evidence of the disease required under KRS 342.732 for benefit determination.
        5. Within forty-five (45) days following the notice of filing an application for resolution of claim, the employer or carrier shall notify the commissioner and all parties of record of its acceptance or denial of the claim. A denial shall be in writing and shall state the specific basis for the denial.
        6. The administrative law judge shall conduct such proceedings as are necessary to resolve the claim and shall have authority to grant or deny any relief, including interlocutory relief, to order additional proof, to conduct a benefit review conference, or to take such other action as may be appropriate to resolve the claim.
        7. Unless a voluntary settlement is reached by the parties, or the parties agree otherwise, the administrative law judge shall issue a written determination within sixty (60) days following a hearing. The written determination shall address all contested issues and shall be enforceable under KRS 342.305 .
        8. Within thirty (30) days of the receipt of the statement for the evaluation, the employer, insurer, or payment obligor shall pay the cost of the examination. Upon notice from the commissioner that an evaluation has been scheduled, the employer, insurer, or payment obligor shall forward the expenses of travel necessary to attend the evaluation at the state employee reimbursement rates to the employee within seven (7) days. However, if the employee has alleged a pulmonary dysfunction but has not filed spirometric evidence as required by paragraph (a) of this subsection at the time the evaluation is scheduled by the commissioner, the employee will be responsible for fifty percent (50%) of the cost of the evaluation.
      5. The procedure for appeal from a determination of an administrative law judge shall be as set forth in KRS 342.285 .
    1. The right to compensation under this chapter resulting from an occupational disease shall be forever barred unless a claim is filed with the commissioner within three (3) years after the last injurious exposure to the occupational hazard or after the employee first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise the employee that he or she has contracted the disease, whichever shall last occur; and if death results from the occupational disease within that period, unless a claim therefor be filed with the commissioner within three (3) years after the death; but that notice of claim shall be deemed waived in case of disability or death where the employer, or its insurance carrier, voluntarily makes payment therefor, or if the incurrence of the disease or the death of the employee and its cause was known to the employer. However, the right to compensation for any occupational disease shall be forever barred, unless a claim is filed with the commissioner within five (5) years from the last injurious exposure to the occupational hazard, except that, in cases of radiation disease, asbestos-related disease, or a type of cancer specified in KRS 61.315(11)(b), a claim must be filed within twenty (20) years from the last injurious exposure to the occupational hazard. (4) (a) The right to compensation under this chapter resulting from an occupational disease shall be forever barred unless a claim is filed with the commissioner within three (3) years after the last injurious exposure to the occupational hazard or after the employee first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise the employee that he or she has contracted the disease, whichever shall last occur; and if death results from the occupational disease within that period, unless a claim therefor be filed with the commissioner within three (3) years after the death; but that notice of claim shall be deemed waived in case of disability or death where the employer, or its insurance carrier, voluntarily makes payment therefor, or if the incurrence of the disease or the death of the employee and its cause was known to the employer. However, the right to compensation for any occupational disease shall be forever barred, unless a claim is filed with the commissioner within five (5) years from the last injurious exposure to the occupational hazard, except that, in cases of radiation disease, asbestos-related disease, or a type of cancer specified in KRS 61.315(11)(b), a claim must be filed within twenty (20) years from the last injurious exposure to the occupational hazard.
    2. Income benefits for the disease of pneumoconiosis resulting from exposure to coal dust or death therefrom shall not be payable unless the employee has been exposed to the hazards of such pneumoconiosis in the Commonwealth of Kentucky over a continuous period of not less than two (2) years during the ten (10) years immediately preceding the date of his or her last exposure to such hazard, or for any five (5) of the fifteen (15) years immediately preceding the date of such last exposure.
  3. The amount of compensation payable for disability due to occupational disease or for death from the disease, and the time and manner of its payment, shall be as provided for under the general provisions of the Workers’ Compensation Act, but:
    1. In no event shall the payment exceed the amounts that were in effect at the time of the last injurious exposure;
    2. The time of the beginning of compensation payments shall be the date of the employee’s last injurious exposure to the cause of the disease, or the date of actual disability, whichever is later; and
    3. In case of death where the employee has been awarded compensation or made timely claim within the period provided for in this section, and an employee has suffered continuous disability to the date of his or her death occurring at any time within twenty (20) years from the date of disability, his or her dependents, if any, shall be awarded compensation for his or her death as provided for under the general provisions of the Workers’ Compensation Act and in this section, except as provided in KRS 342.750(6).
  4. If an autopsy has been performed, no testimony relative thereto shall be admitted unless the employer or its representative has available findings and reports of the pathologist or doctor who performed the autopsy examination.
  5. No compensation shall be payable for occupational disease if the employee at the time of entering the employment of the employer by whom compensation would otherwise be payable, falsely represented himself or herself, in writing, as not having been previously disabled, laid-off, or compensated in damages or otherwise, because of the occupational disease, or failed or omitted truthfully to state to the best of his or her knowledge, in answer to written inquiry made by the employer, the place, duration, and nature of previous employment, or, to the best of his or her knowledge, the previous state of his or her health.
  6. No compensation for death from occupational disease shall be payable to any person whose relationship to the deceased, which under the provisions of this chapter would give right to compensation, arose subsequent to the beginning of the first compensable disability, except only for after-born children of a marriage existing at the beginning of such disability.
  7. Whenever any claimant misconceives his or her remedy and files an application for adjustment of claim under the general provisions of this chapter and it is subsequently discovered, at any time before the final disposition of the cause, that the claim for injury, disability, or death which was the basis for his or her application should properly have been made under the provisions of this section, then the application so filed may be amended in form or substance, or both, to assert a claim for injury, disability, or death under the provisions of this section, and it shall be deemed to have been so filed as amended on the date of the original filing thereof, and compensation may be awarded that is warranted by the whole evidence pursuant to the provisions of this chapter. When amendment of this type is submitted, further or additional evidence may be heard when deemed necessary. Nothing this section contains shall be construed to be or permit a waiver of any of the provisions of this chapter with reference to notice of time for filing of a claim, but notice of filing a claim, if given or done, shall be deemed to be a notice of filing of a claim under provisions of this chapter, if given or done within the time required by this subsection.
  8. When an employee has an occupational disease that is covered by this chapter, the employer in whose employment he or she was last injuriously exposed to the hazard of the disease, and the employer’s insurance carrier, if any, at the time of the exposure, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier, except as otherwise provided in this chapter.
    1. For claims filed on or before June 30, 2017, income benefits for coal-related occupational pneumoconiosis shall be paid fifty percent (50%) by the Kentucky coal workers’ pneumoconiosis fund as established in KRS 342.1242 and fifty percent (50%) by the employer in whose employment the employee was last exposed to the hazard of that occupational disease. (11) (a) For claims filed on or before June 30, 2017, income benefits for coal-related occupational pneumoconiosis shall be paid fifty percent (50%) by the Kentucky coal workers’ pneumoconiosis fund as established in KRS 342.1242 and fifty percent (50%) by the employer in whose employment the employee was last exposed to the hazard of that occupational disease.
    2. Income benefits for coal-related occupational pneumoconiosis for claims filed after June 30, 2017, shall be paid by the employer in whose employment the employee was last exposed to the hazards of coal workers’ pneumoconiosis.
    3. Compensation for all other occupational disease shall be paid by the employer in whose employment the employee was last exposed to the hazards of the occupational disease.
  9. A concluded claim for benefits by reason of contraction of coal workers’ pneumoconiosis in the severance or processing of coal shall bar any subsequent claim for benefits by reason of contraction of coal workers’ pneumoconiosis, unless there has occurred in the interim between the conclusion of the first claim and the filing of the second claim at least two (2) years of employment wherein the employee was continuously exposed to the hazards of the disease in the Commonwealth.

HISTORY: Enact. Acts 1944, ch. 82, § 3; 1948, ch. 151, § 4; 1956, ch. 77, § 12; 1960, ch. 35; 1960, ch. 147, § 16; 1962, ch. 276, § 3; 1964, ch. 192, § 24; 1970, ch. 16, § 3; 1972, ch. 78, § 18; 1974, ch. 177, § 1; 1976, ch. 108, § 2; 1980, ch. 104, § 10, effective July 15, 1980; 1982, ch. 278, § 21, effective July 15, 1982; 1982, ch. 426, § 1, effective July 15, 1982; 1986, ch. 317, § 1, effective July 15, 1986; 1987 (Ex. Sess.), ch. 1, § 41, effective October 26, 1987; 1990, ch. 99, § 2, effective July 13, 1990; 1994, ch. 181, Part 15, § 83, effective April 4, 1994; 1996, ch. 355, § 12, effective July 15, 1996; 1996 (1st Ex. Sess.), ch. 1, § 16, effective December 12, 1996; 2000, ch. 514, § 23, effective July 14, 2000; 2002, ch. 340, § 2, effective July 15, 2002; 2010, ch. 24, § 1816, effective July 15, 2010; 2010, ch. 90, § 4, effective July 15, 2010; 2017 ch. 173, § 5, effective April 10, 2017; 2018 ch. 40, § 9, effective July 14, 2018.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Purpose.
  3. Construction.
  4. Application.
  5. Legislative Intent.
  6. — Proof.
  7. Occupational Disease.
  8. — Causal Connection.
  9. — Employee Continuing to Work.
  10. — Exposure.
  11. — — Asbestos.
  12. — Findings of Fact.
  13. Notice.
  14. — Time.
  15. — Delay.
  16. — Of Resistance.
  17. Claim.
  18. — False Representation.
  19. — Procedure.
  20. — Time.
  21. — Parties.
  22. Evidence.
  23. — Statutory Presumptions.
  24. — Burden of Proof.
  25. — Presumption.
  26. — Out-of-State.
  27. — Limitations.
  28. — Spirometric Testing.
  29. — X-Rays.
  30. Disability.
  31. — Determination.
  32. Award.
  33. — Lack of Evidence.
  34. — — Retraining incentive benefits.
  35. Liability.
  36. — Apportionment.
  37. — Special Fund.
  38. — — Estoppel.
  39. Effect of Merger.
  40. Appeal.
  41. Appointment of University Evaluator.

11. — —Asbestos.

1. Constitutionality.

Subsection (7) (now (8)), which provided that workers’ compensation was payable only to after-born children of a marriage existing at the beginning of a disability, did not violate the federal or Kentucky equal protection clauses since (1) the statute was, in fact, a saving statute which extended benefits to after-born children of a marriage existing on the date of the compensable event, and (2) the statute was rationally based so as to give an employer, its insurer and the Special Fund a reasonable basis to anticipate the amount and duration of their potential liability for a particular claim and to establish reasonable monetary reserves to cover that liability. Steven Lee Enters. v. Varney, 36 S.W.3d 391, 2000 Ky. LEXIS 153 ( Ky. 2000 ).

Consensus procedure under KRS 342.316 for coal workers’ pneumoconiosis claims did not violate equal protection under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, and 3 because the inherent differences in pneumoconiosis, which was slow to develop, and a traumatic injury provided a reasonable basis for the different statutory treatment for such workers’ compensation claims. KRS 342.316 (13) did not impose a greater burden of proof than on those workers who claimed benefits under KRS 342.730 as the presumption in the consensus procedure was a rebuttable one that could be overcome with clear and convincing evidence. Durham v. Peabody Coal Co., 272 S.W.3d 192, 2008 Ky. LEXIS 240 ( Ky. 2008 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

KRS 342.316(3)(b)(4)(e) denied a workers’ compensation benefits claimant equal protection because it discriminated between him and a similarly-situated worker whose employer also submitted evidence of category 1 disease but whose claim was not subject to the second phase of the consensus process; KRS 342.316(3)(b)(4)(e) creates two classes of workers based solely on the amount of discrepancy between the worker’s and employer’s evidence, and because there is no rational or reasonable basis for such discrimination where the employer’s evidence effectively concedes the worker’s entitlement to a retraining incentive benefit. Cain v. Lodestar Energy, Inc., 302 S.W.3d 39, 2009 Ky. LEXIS 71 ( Ky. 2009 ).

Workers’ compensation benefits claimant failed to show that the consensus process denied equal protection to all coal workers who raised pneumoconiosis claims; KRS 342.316(3) and (13) do not deny equal protection to all coal workers who raise pneumoconiosis claims. Cain v. Lodestar Energy, Inc., 302 S.W.3d 39, 2009 Ky. LEXIS 71 ( Ky. 2009 ).

KRS 342.316 is unconstitutional insofar as it requires a three-member consensus panel and imposed a higher burden of proof upon coal worker pneumoconiosis claimants than on other pneumoconiosis claimants. Thus, dismissal of a coal miner’s workers’ compensation claim based on a panel’s consensus was error. Gardner v. Vision Mining, Inc., 2010 Ky. App. LEXIS 69 (Ky. Ct. App. Apr. 9, 2010), aff'd, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

Equal protection was violated by KRS 342.316 because there was no substantial nor justifiable reason to treat workers who contracted pneumoconiosis through cool mining differently from those who contracted pneumoconiosis due to the inhaling of other particulates; the statute impermissibly shifted the burden of proof. Martinez v. Peabody Coal Co., 2010 Ky. App. LEXIS 102 (Ky. Ct. App. June 4, 2010), aff'd, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

Consensus procedure required by KRS 342.316 for proving the existence of coal workers’ pneumoconiosis, and the clear and convincing standard required to rebut such a consensus, violated the equal protection guarantees of U.S. Const. amend. XIV and Ky. Const. § 1-3 because there was no rational basis or substantial and justifiable reason for the disparate treatment of coal workers. Pneumoconiosis caused by exposure to coal dust was the same disease as pneumoconiosis caused by exposure to dust particles in other industries, yet coal workers faced different, higher standard-of-proof requirements than those other workers. Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

2. Purpose.

The ultimate object of workers’ compensation is to offset loss of earnings. Allen v. Commonwealth, Dep't of Highways, 425 S.W.2d 283, 1968 Ky. LEXIS 413 ( Ky. 1968 ).

The 1972 amendment was designed to meet the pressure of the Federal Black Lung Act. Yocom v. Chapman, 542 S.W.2d 510, 1976 Ky. LEXIS 26 ( Ky. 1976 ).

3. Construction.

A liberal construction of the law requires an extension of its benefits to employees in situations where inclusion in the coverage is as compatible with the law as is exclusion from coverage. Princess Mfg. Co. v. Jarrell, 465 S.W.2d 45, 1971 Ky. LEXIS 425 ( Ky. 1971 ).

The legal presumption of former subsection (6) of this section that all resultant disability from silicosis is work related and compensable goes to causation and has no reference to the time when disability begins. Young v. West, 478 S.W.2d 727, 1972 Ky. LEXIS 343 ( Ky. 1972 ).

The only apparent meaning of former subsection (2)(b)2 of this section providing that the presumptive clause of former subsection (6) concerning disability or death from silicosis when complicated by other pulmonary dysfunction is that the burden of proof concerning the subject matter of former subsection (6) shall rest with the employer and the special fund and the proviso in the presumptive clause that the disease or dysfunction was an essential element in causing the disability or death remains unaffected. Young v. Daniels, 481 S.W.2d 295, 1972 Ky. LEXIS 249 ( Ky. 1972 ) (decision prior to 1987 amendment).

Subsection (3) (now (4)) of this section is clearly a rule of limitation and those rules governing limitations generally are controlling as to its effect on proceedings filed under the occupational disease provisions of the workers’ compensation law. Young v. Tackett, 481 S.W.2d 661, 1972 Ky. LEXIS 261 ( Ky. 1972 ).

The correct interpretation of this section is that the employer shall be liable for 25% of the disability award — not 25% of the weeks of employee’s life expectancy. Island Creek Coal Co. v. Davis, 761 S.W.2d 179, 1988 Ky. App. LEXIS 108 (Ky. Ct. App. 1988).

Authority which addresses the relevance of employer prejudice in claims for occupational disease, where the notice requirement is controlled by this section, is not dispositive with regard to claims for injury which are controlled by KRS 342.185 . Smith v. Cardinal Constr. Co., 13 S.W.3d 623, 2000 Ky. LEXIS 36 ( Ky. 2000 ).

KRS 342.0015 expresses a clear legislative intent for KRS 342.315 and subdivision (3)(b)4.b. to apply to all claims pending before an arbitrator or administrative law judge on or after December 12, 1996. Magic Coal Co. v. Fox, 19 S.W.3d 88, 2000 Ky. LEXIS 60 ( Ky. 2000 ).

4. Application.

Limitations prescribed by the workers’ compensation law did not apply to actions for breach of union contract requiring coverage for occupational diseases. Blankenship v. Majestic Collieries Co., 399 S.W.2d 699, 1966 Ky. LEXIS 474 ( Ky. 1966 ).

Subsection (8) (now subsection (6)) of this section is applicable to postmortems held at the instance of one or the other of the party-litigants. Young v. Napier, 464 S.W.2d 235, 1971 Ky. LEXIS 475 ( Ky. 1971 ).

In the absence of a controlling Kentucky statute, no Kentucky court or any federal court construing Kentucky law has held that the “discovery rule” applies to property damage actions. G & K Dairy v. Princeton Electric Plant Bd., 781 F. Supp. 485, 1991 U.S. Dist. LEXIS 20439 (W.D. Ky. 1991 ).

KRS 342.318 was intended to serve as a transitional provision so that any live claims as of July 15, 1986, would be governed by the amended version of subsection (3)(a) (now (4)(a)) of this section. William A. Pope Co. v. Howard, 851 S.W.2d 460, 1993 Ky. LEXIS 1 ( Ky. 1993 ).

Subsection (3)(b) (now (4)(b)) of this section is not in conflict with KRS 342.610(1), 342.640(1), and 342.690(1)Mullins v. Manning Coal Corp., 938 S.W.2d 260, 1997 Ky. LEXIS 1 (Ky.), cert. denied, 521 U.S. 1119, 117 S. Ct. 2511, 138 L. Ed. 2d 1014, 1997 U.S. LEXIS 4077 (U.S. 1997).

The statute has nothing to do with which employer is liable in tort; it only has to do with which employer is liable for workers’ compensation payments. Becht v. Owens-Corning Fiberglas Corp., 196 F.3d 650, 1999 FED App. 0384P, 1999 U.S. App. LEXIS 29683 (6th Cir. Ky. 1999 ).

5. Legislative Intent.

Where a claimant exhibits differing degrees of restrictive and obstructive impairment, the Legislature intended to award benefits based on the more severe impairment resulting from exposure to coal dust, regardless of whether it is due to pneumoconiosis or the obstructive airways disease; therefore, KRS 342.732(2) requires that if either the largest FVC value or the largest FEV1 value is 55% or more but not less than 80% of the predicted normal, a claimant may qualify for benefits under KRS 342.732(1)(b). Newberg v. Wright, 824 S.W.2d 843, 1992 Ky. LEXIS 27 ( Ky. 1992 ).

6. — Proof.

From an examination of KRS 342.732 and subsection (2)(b) (now (3)(a)1.) of this section it is apparent that the Legislature, in enacting these provisions, sought to establish more precise and more objective standards of proof for a coal workers’ pneumoconiosis claim than was previously the case. The resulting scheme has decreased the subjective element in reading a claimant’s X-rays by prescribing consistent standards for acceptable X-rays, and by prescribing the classification system to be used in interpreting them. Similarly, the degree of a claimant’s occupational disability is established by statute and is based on his degree of respiratory impairment, as well as on the classification of his X-rays and not on a subjective determination of occupational disability as was previously the case. Wright v. Hopwood Mining, 832 S.W.2d 884, 1992 Ky. LEXIS 88 ( Ky. 1992 ).

Because the submitted claim for retraining incentive benefits due to coal workers’ pneumoconiosis was not supported by reports of two separate chest x-rays, as required under subsection (2)(d)1 (deleted by 1996 (Ex. Sess.) amendment) of this section, claimant was not entitled to an award pursuant to KRS 342.732(1)(a); correction of such substantive defect was not permitted by case law. Miller v. Arch of Kentucky, 918 S.W.2d 748, 1996 Ky. App. LEXIS 42 (Ky. Ct. App. 1996).

7. Occupational Disease.

Considering this section and KRS 342.125 together leads to the conclusion that employees disabled from occupational diseases have been restricted by a limitation not imposed upon employees disabled from traumatic injury. Harvey Coal Co. v. Colwell, 313 S.W.2d 274, 1958 Ky. LEXIS 250 ( Ky. 1958 ).

The controlling factor is not when or where the disease developed but where the employee became disabled while working under occupational conditions which would, regardless of the time element, cause such disease. Gregory v. Peabody Coal Co., 355 S.W.2d 156, 1962 Ky. LEXIS 61 ( Ky. 1962 ).

Painful condition in right hand which prevented worker from performing her duties, diagnosed as tenosynovitis, which was specifically attributable to the repetitious use of the right thumb and wrist in operating a calculating machine during her employment, constituted a compensable disability from an occupational disease. National Stores, Inc. v. Hester, 393 S.W.2d 603, 1965 Ky. LEXIS 241 ( Ky. 1965 ).

The test of determining whether a disease is an occupational one is not whether the disease is literally peculiar to the occupation but whether there exists a recognizable link between the disease and some distinctive feature of the claimant’s job common to all jobs of that sort. National Stores, Inc. v. Hester, 393 S.W.2d 603, 1965 Ky. LEXIS 241 ( Ky. 1965 ).

Whether or not a condition is compensable as being an occupational disease under this section depends upon whether the claimant has established that the hazards of his employment increased his exposure to the disease he has contracted. National Stores, Inc. v. Hester, 393 S.W.2d 603, 1965 Ky. LEXIS 241 ( Ky. 1965 ).

Where claimant, employed as a coal miner and found to be suffering from pneumoconiosis, quit his job in the mines and subsequently took a seasonal job where he did light work six months out of the year, an award of total permanent disability was not justified. Osborne v. Johnson, 432 S.W.2d 800, 1968 Ky. LEXIS 353 ( Ky. 1968 ), limited, Crib Diaper Service v. Standifer, 436 S.W.2d 501, 1969 Ky. LEXIS 477 ( Ky. 1969 ). See Young v. Marsillett, 473 S.W.2d 128, 1971 Ky. LEXIS 147 ( Ky. 1971 ); Young v. Fraley, 474 S.W.2d 884, 1971 Ky. LEXIS 127 ( Ky. 1971 ); Young v. Hall, 485 S.W.2d 529, 1972 Ky. LEXIS 139 ( Ky. 1972 ).

The board did not err in its denial of benefits based on the absence of an “occupational disease” where the claimant suffered from “scalenus anticus syndrome” which was a developmental abnormality and not a disease. Keel v. Thomas Industries, Inc., 463 S.W.2d 919, 1971 Ky. LEXIS 593 ( Ky. 1971 ) (decision prior to 1972 amendment).

Chronic bronchitis is a disorder that the population generally is exposed to and is not an occupational disease under the Worker's Compensation Law. Fitch v. Princess Coals, Inc., 463 S.W.2d 941, 1971 Ky. LEXIS 599 ( Ky. 1971 ) (decision prior to 1972 amendment).

An employee suffering an allergic reaction to fabrics used in her employment is suffering from an occupational disease within the meaning of this section. Princess Mfg. Co. v. Jarrell, 465 S.W.2d 45, 1971 Ky. LEXIS 425 ( Ky. 1971 ) (decision prior to 1972 amendment).

In determining whether allergic reactions are occupational diseases within the meaning of this section, the question is whether to apply a subjective test to determine how the conditions of employment affect a particular employee or to objectively limit inquiry as to how the conditions of employment affect employees generally. Princess Mfg. Co. v. Jarrell, 465 S.W.2d 45, 1971 Ky. LEXIS 425 ( Ky. 1971 ) (decision prior to 1972 amendment).

Where the condition existing prior to injury was a weakening normally due to wear and tear processes, such condition did not constitute disease within the meaning of this statute and apportionment between the employer and the special fund was disallowed. Young v. Vanover, 476 S.W.2d 836, 1972 Ky. LEXIS 399 ( Ky. 1972 ).

Employee’s knowledge that he had emphysema did not obligate him to notify his employer of his condition because emphysema, like chronic bronchitis, is a condition to which the population is generally exposed and is not considered an occupational disease. Carol Coal Co. v. Harris, 477 S.W.2d 783, 1972 Ky. LEXIS 361 ( Ky. 1972 ).

The question of whether the claimant experienced manifestations sufficient to apprise him that he was suffering from an occupational disease was one of fact rather than law. Carol Coal Co. v. Harris, 477 S.W.2d 783, 1972 Ky. LEXIS 361 ( Ky. 1972 ).

A claimant could not recover where he did not prove that he was exposed to the hazards of the disease for at least two years (now three) immediately preceding the disability and that the continuity of the exposure was without substantial interruption. Young v. Jones, 481 S.W.2d 268, 1972 Ky. LEXIS 239 ( Ky. 1972 ).

Where there was evidence that the claimant was afflicted with stage II silicosis and testimony that an examination made about nine months after leaving his employment disclosed the presence of pneumoconiosis, together with the physician’s statement that related his subsequent findings as existing back to the employment separation date, such evidence was sufficient to establish that the claimant had become totally and permanently disabled as a result of the compensable occupational disease of silicosis or pneumoconiosis. Young v. Begley, 485 S.W.2d 530, 1972 Ky. LEXIS 140 ( Ky. 1972 ).

Where the testimony of medical experts indicated that the claimant, who had worked in the mines for more than 30 years prior to termination of his employment, was disabled by silicosis to the same degree at the time he terminated employment as at the time of his subsequent examination, such evidence established that the claimant had had two years’ exposure immediately prior to his disability. Yocom v. Hicks, 494 S.W.2d 733, 1973 Ky. LEXIS 458 ( Ky. 1973 ).

Where miner was last exposed to hazards of pneumoconiosis after January 1, 1973, an award by the board should have been allocated so that the special fund paid 75% while the employer paid 25%, and § 37 of Acts 1972, ch. 78, compiled herein as KRS 342.255 (now repealed), did not defer the effective date of this section. Maggard v. International Harvester Co., 508 S.W.2d 777, 1974 Ky. LEXIS 632 ( Ky. 1974 ).

Occupational diseases are those diseases which are developed gradually and which are not sudden in their onset, and where the claimant’s sudden massive exposure to a toxic chemical was accidental and unforeseen, it was not a natural incident of his employment but was a sudden traumatic injury so that the employer was totally responsible for compensating the claimant for his resulting disability. Mobile Wash of Louisville, Inc. v. Lovitt, 565 S.W.2d 150, 1978 Ky. App. LEXIS 504 (Ky. Ct. App. 1978).

An occupational disease is for coverage purposes a special category of injury, and the distinction between the two becomes significant in determining whether the provisions of this section are to be triggered. Dealers Transport Co. v. Thompson, 593 S.W.2d 84, 1979 Ky. App. LEXIS 500 (Ky. Ct. App. 1979).

It is for the doctors to testify and for the board to find as a fact, what should be classified as a gradual type injury and what is an occupational disease. O.K. Precision Tool & Die Co. v. Wells, 678 S.W.2d 397, 1984 Ky. LEXIS 291 ( Ky. 1984 ).

Where employee developed lateral epicondylitis (“tennis elbow”) after 15 years of assembly line work, the condition was classifiable as a gradual type of injury under 342.120 instead of an occupational disease under this section. O.K. Precision Tool & Die Co. v. Wells, 678 S.W.2d 397, 1984 Ky. LEXIS 291 ( Ky. 1984 ).

Where there was ample evidence that the claimant suffered an allergic reaction every time she was exposed to computer terminals in her work environment, her failure to adduce evidence identifying by name the allergen emanating from the computers did not dictate that her occupational disease claim had to be dismissed. Farmers Rural Electric Cooperative Corp. v. Cooper, 715 S.W.2d 478, 1986 Ky. App. LEXIS 1209 (Ky. Ct. App. 1986).

8. — Causal Connection.

Where category 1 disease was present, medical proof was taken, and the claim filed against first employer before claimant was employed by another mine, there could be no causal connection between the disease that was the subject of the claim and that latter employment, therefore, subdivision (10)(c) of this section could not properly be read to relieve first employer of liability by shifting it to subsequent employer with no connection whatever to the claim. National Mines Corp. v. Pitts, 806 S.W.2d 636, 1991 Ky. LEXIS 41 ( Ky. 1991 ), limited, Begley v. Mountain Top, 968 S.W.2d 91, 1998 Ky. LEXIS 77 ( Ky. 1998 ).

9. — Employee Continuing to Work.

The fact that an employee continues to work does not affect that employee’s entitlement to workers’ compensation benefits; he still may be found to have an active, occupational disability. Bethenergy Mines, Inc. v. Easterling, 776 S.W.2d 842, 1989 Ky. App. LEXIS 91 (Ky. Ct. App. 1989).

Total disability payments due under KRS 342.732 for claimant having category 2 pneumoconiosis were not authorized to be paid to claimant who continued to work as a miner because claimant was still being injuriously exposed to hazards of the disease and thus payments could not begin under subsection (1)(b) of this section and since workers’ compensation benefits are to replace lost income, to pay benefits to worker still receiving earnings would be double recovery. For so long as claimant continued to work for the same employer, this worker’s benefits should be held in abeyance and not dismissed. Smith v. Leeco, Inc., 897 S.W.2d 581, 1995 Ky. LEXIS 25 ( Ky. 1995 ).

A workers’ compensation award that is held in abeyance while employee continues to work is payable at the rate in effect at the time the benefit was sought, with the payment of benefits beginning at the time of the last injurious exposure. Leeco, Inc. v. Smith, 970 S.W.2d 337, 1998 Ky. LEXIS 102 ( Ky. 1998 ).

10. — Exposure.

What constitutes substantial interruption of exposure to the industrial hazard required in former subsection (4) of this section is basically a factual question for the board, unless the facts are so clear that it can be determined as a matter of law. Inland Steel C. v. Terry, 464 S.W.2d 284, 1970 Ky. LEXIS 102 ( Ky. 1970 ); Yocom v. Overstreet, 512 S.W.2d 940, 1974 Ky. LEXIS 416 ( Ky. 1974 ); Yocom v. Hayes, 516 S.W.2d 651, 1974 Ky. LEXIS 139 ( Ky. 1974 ) (decision prior to the 1972 amendment).

Claim for compensation for disability from pneumoconiosis was properly denied under former subsection (4) of this section where evidence indicated that during the two year period immediately preceding his disability he was off work for four months due to a back injury sustained in his employment, although the cause of such injury was beyond his control. Yocom v. Overstreet, 512 S.W.2d 940, 1974 Ky. LEXIS 416 ( Ky. 1974 ) (decision prior to 1972 amendment).

Workers’ Compensation Board finding that claimant was not entitled to benefits because he had not been exposed to the hazard giving rise to his disease for an uninterrupted period of two years immediately preceding the disability which amounted to a substantial interruption was correct where there was a showing that claimant spent a three and one half month period outside the state during which time he was not exposed to the hazard. Yocom v. Tinker, 514 S.W.2d 686, 1974 Ky. LEXIS 327 ( Ky. 1974 ) (decision prior to 1972 amendment).

Where the Workers’ Compensation Board found that compliance with this section was met when the work interruption was completely beyond the plaintiff’s control and caused by the nature of his employment, the question of what constitutes a substantial interruption of the required exposure is basically a factual question for the board unless the facts are so clear that it can be decided as a matter of law, and the board should confine itself to a factual determination of whether the interruption was substantial or insubstantial without regard to the cause of the interruption. Yocom v. Hayes, 516 S.W.2d 651, 1974 Ky. LEXIS 139 ( Ky. 1974 ).

In view of medical testimony to the effect that pneumoconiosis resulted from claimant’s whole experience in the mines, covering 36 years with one employer except two-day employment with another employer occurring 25 years before the disease reached the stage at which they found it, it was not conclusively proved that the disease was attributable solely to his exposure during the main employment. Yocom v. Eastern Coal Corp., 523 S.W.2d 882, 1975 Ky. LEXIS 123 ( Ky. 1975 ).

A claimant whose last injurious exposure to the hazards of the disease of pneumoconiosis occurred on December 28, 1972, was not entitled to compensation benefits for total permanent disability since claimant failed to satisfy requirement of the pre-1973 law that he had been exposed to the hazards of the disease in his employment within the state for at least two years next before his disability. Brock v. Workmen's Compensation Board, 528 S.W.2d 701, 1975 Ky. LEXIS 78 ( Ky. 1975 ) (decision prior to 1972 amendment).

Where the only testimony concerning other exposure came from employee himself who stated that on two occasions during layoffs he had worked around excavating equipment with dust exposure from the excavating work, and there was testimony of medical examiners that the soil contained silica, there could be no legitimate inference that the excavation work contributed at all to the employee’s disability; therefore, the Workers’ Compensation Board found that the employee’s disability from pneumoconiosis was due to his constant exposure to hazardous dust during 35 years of employment, and pursuant to subdivision (13)(a) (now subdivision (10)(a) deleted by 1996 (Ex. Sess.) amendment), the Board apportioned liability 60% to the employer and 40% to the Special Fund. General Refractories Co. v. Miller, 720 S.W.2d 736, 1986 Ky. App. LEXIS 1508 (Ky. Ct. App. 1986).

A dispute over whether apportionment of liability between the employer of a coal miner claiming worker’s compensation and the special fund should have been based on whether there had been a single exposure or multiple exposures; the fact that the claimant had previously worked as a truck driver at a construction site of a TVA power plant was not considered a contributing cause of the claimant’s pneumoconiosis. Island Creek Coal Co. v. Beale, 804 S.W.2d 1, 1990 Ky. LEXIS 151 ( Ky. 1990 ).

All that is required under subsection (1)(b) of this section is that the exposure be such as could cause the disease independently of any other cause. There are no minimum time requirements for the period of exposure. Howell v. Shelcha Coal Co., 834 S.W.2d 693, 1992 Ky. App. LEXIS 190 (Ky. Ct. App. 1992).

Because claimant’s occupational disease of Hepatitis B did not develop to the point of disability only after an exposure of at least five years, as required by former subsection (10)(a) of this section, this section was not applicable and the Special Fund was not liable for 40% of the award. National Health Lab. v. Hunt, 898 S.W.2d 494, 1995 Ky. App. LEXIS 56 (Ky. Ct. App. 1995).

The employer and Special Fund were entitled to rely on rights contained in the repose provision of this section which freed them from any liability for compensation after the passage of five years from the employee’s exposure. Wright v. Oberle-Jordre Co., 910 S.W.2d 241, 1995 Ky. LEXIS 141 ( Ky. 1995 ).

Since an employee’s right to occupational disease benefits is purely statutory in nature and it does not fall under the ambit Ky. Const., § 14, the General Assembly is free to limit the application of workers’ compensation benefits as it has in subsection (3)(b) (now (4)(b)) of this section to a legitimate state interest and require that an employee have a minimum exposure to the hazards of pneumoconiosis for a period of not less than two (2) years. Mullins v. Manning Coal Corp., 938 S.W.2d 260, 1997 Ky. LEXIS 1 (Ky.), cert. denied, 521 U.S. 1119, 117 S. Ct. 2511, 138 L. Ed. 2d 1014, 1997 U.S. LEXIS 4077 (U.S. 1997).

Under the clear, unambiguous language of this section, the employer in whose employment the employee was last exposed to the hazard — in this case, exposure to coal dust, which contributed to his pneumoconiosis — is liable for the full amount of compensation for employee’s occupational disease. Begley v. Mountain Top, 968 S.W.2d 91, 1998 Ky. LEXIS 77 ( Ky. 1998 ).

The last injurious exposure of a nurse to Acquired Immune Deficiency Syndrome occurred prior to a change of insurance carriers by the employer where, prior to such change, the nurse sustained a needle stick with a contaminated needle and no such incident by which the nurse could have contracted the disease occurred after the change of insurance carriers. Barren River District Health Dep't v. Hussey, 2000 Ky. App. LEXIS 39 (Ky. Ct. App. Apr. 14, 2000).

Requirement in KRS 342.125(5)(a) and KRS 342.316(12) that a pneumoconiosis claimant be exposed to additional coal dust in order to reopen was not a due process or equal protection violation because there was a rational basis for requiring additional exposure, and absent additional exposure, res judicata principles applied. Scott v. AEP Ky. Coals, LLC, 196 S.W.3d 24, 2006 Ky. App. LEXIS 189 (Ky. Ct. App. 2006).

11. — — Asbestos.

The amendment of subdivision (3)(a) (now (4)(a)) of this section, which took effect July 15, 1986, to include asbestos-related claims, would be for the benefit of any asbestosis victim whose date of last exposure fell after July 15, 1981; it would not be applied retroactively to revive a previously expired cause of action. William A. Pope Co. v. Howard, 851 S.W.2d 460, 1993 Ky. LEXIS 1 ( Ky. 1993 ).

12. — Findings of Fact.

It was incumbent upon the Workers’ Compensation Board to set forth a specific factual basis for its finding that the claimant suffered from pneumoconiosis, where, although there was support for a finding of pneumoconiosis from a number of physicians — the only physicians cited by the board in its findings of fact — there was the medical testimony or reports from fifteen additional physicians that the claimant did not suffer from coal workers’ pneumoconiosis. Kentland Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47, 1988 Ky. App. LEXIS 2 (Ky. Ct. App. 1988).

11. — —Asbestos.

Court of Appeals properly affirmed the Workers’ Compensation Board, which reversed an ALJ’s denial of a teacher’s claim for benefits as untimely, because the statute at issue required only that exposure could independently cause a disease such as the teacher’s mesothelioma—not that it did in fact cause the disease, and it was abundantly clear from the evidence that the county failed to eradicate all asbestos-containing material from the school building and that the material, including tiling, was present in the school when the teacher retired, and beyond. Letcher Cty. Bd. of Educ. v. Hall, 576 S.W.3d 123, 2019 Ky. LEXIS 203 ( Ky. 2019 ).

Court of Appeals properly affirmed the Workers’ Compensation Board, which reversed an ALJ’s denial of a teacher’s claim for benefits as untimely, because the statute at issue required only that exposure could independently cause a disease such as the teacher’s mesothelioma—not that it did in fact cause the disease, and it was abundantly clear from the evidence that the county failed to eradicate all asbestos-containing material from the school building and that the material, including tiling, was present in the school when the teacher retired, and beyond. Letcher Cty. Bd. of Educ. v. Hall, 576 S.W.3d 123, 2019 Ky. LEXIS 203 ( Ky. 2019 ).

13. Notice.

The notice requirement of this section is notice of disability. Mary Helen Coal Corp. v. Chitwood, 351 S.W.2d 167, 1961 Ky. LEXIS 145 ( Ky. 1961 ). See Peabody Coal Co. v. Guthrie, 351 S.W.2d 168, 1961 Ky. LEXIS 146 ( Ky. 1961 ).

The notice requirement of this section is notice of disability from an occupational disease rather than notice of contraction of such a disease. Inland Steel Co. v. Mosby, 355 S.W.2d 651, 1962 Ky. LEXIS 70 ( Ky. 1962 ).

Notice is not required until the employee first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted such disease, or a diagnosis of such disease is communicated to him, whichever shall first occur. Carol Coal Co. v. Harris, 477 S.W.2d 783, 1972 Ky. LEXIS 361 ( Ky. 1972 ).

Where there was sufficient evidence to support the Board’s finding that the claimant notified the employer as soon as possible, the Board’s finding could not be reversed. Carol Coal Co. v. Harris, 477 S.W.2d 783, 1972 Ky. LEXIS 361 ( Ky. 1972 ).

Where employer failed to file notice of resistance to coal miner’s compensation claim based upon disability from pneumoconiosis, employer had no standing to raise special answer asserting the defense of lack of timely notice as to employee’s disease. Yocom v. Harrison, 517 S.W.2d 231, 1974 Ky. LEXIS 20 ( Ky. 1974 ).

Although notice to the special fund of a miner’s claim for benefits was not required, the special fund was not bound by the employer’s stipulation that timely notice of the claim was given, where there was no evidence in the record that timely notice was given, and therefore the special fund was entitled to dismissal of the claim against it. Wagoner v. Hopkins, 531 S.W.2d 511, 1975 Ky. LEXIS 41 ( Ky. 1975 ).

Subsection (2) of this section means that before such notice is required to be given by the employee to his employer the following conditions must occur: (1) the employee has a disability from an occupational disease which impairs his capacity to perform his work, and (2) the employee knows or should know by the exercise of reasonable care and diligence that he is suffering from the disease. Caudill v. Jean Coal Co., 571 S.W.2d 633, 1978 Ky. App. LEXIS 593 (Ky. Ct. App. 1978).

Although subsection (2)(a) (now (2)) of this section speaks in terms of a claimant’s awareness that he has contracted an occupational disease, the obligation to give notice to the employer does not arise until the employee is in fact disabled. Caldwell v. Yocom, 574 S.W.2d 913, 1978 Ky. App. LEXIS 635 (Ky. Ct. App. 1978).

A claimant’s filing of a federal black lung claim was not notice to the claimant, as a matter of law, that he was affected with the occupational disease of pneumoconiosis and thus required to give notice to the employer. Kirkwood v. John Darnell Coal Co., 602 S.W.2d 170, 1980 Ky. LEXIS 238 ( Ky. 1980 ).

The notice provisions of this section are to be applied to claims for retraining incentive benefits. A disability must exist before notice of a claim for compensation for pneumoconiosis is required to be given; it is not enough that the worker “simply have been advised by a doctor that he has the disease.” Howell v. Shelcha Coal Co., 834 S.W.2d 693, 1992 Ky. App. LEXIS 190 (Ky. Ct. App. 1992).

Subdivision (2)(a) (now (2)) of this section requires a claimant to give notice to employer if he experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him of that fact, “or” if such a diagnosis is communicated to him. Clearly, one “or” the other of these requirments must be met; the combination of facts not sufficient in and of themselves to meet either part of this section whereby the facts as combined are deemed sufficient to meet one part of this section is not proper. Coal-Mac, Inc. v. Blankenship, 863 S.W.2d 333, 1993 Ky. App. LEXIS 134 (Ky. Ct. App. 1993).

Workers’ compensation statutes do not preclude treatment of the claim application as the method by which notice may be transmitted to an employer in cases of occupational disease claims: although a separate written notice preceding the filing of a claim may have been contemplated by the Legislature, and may be the better practice, this section does not require it. Martin County Coal Corp. v. Preece, 924 S.W.2d 840, 1996 Ky. App. LEXIS 106 (Ky. Ct. App. 1996).

14. — Time.

Before notice is required to be given by the employee to the employer, the following conditions must concur: (1) the employee has a disability from an occupational disease which impairs his capacity to perform his work; and (2) the employee knows or should know by the exercise of reasonable care and diligence that he is suffering from the disease. Mary Helen Coal Corp. v. Chitwood, 351 S.W.2d 167, 1961 Ky. LEXIS 145 ( Ky. 1961 ). See Peabody Coal Co. v. Guthrie, 351 S.W.2d 168, 1961 Ky. LEXIS 146 ( Ky. 1961 ); Peabody Coal Co. v. Harp, 351 S.W.2d 170, 1961 Ky. LEXIS 147 (Ky. 1961); Peabody Coal Co. v. Powell, 351 S.W.2d 172, 1961 Ky. LEXIS 148 (Ky. 1961); Inland Steel Co. v. Wallen, 353 S.W.2d 370, 1962 Ky. LEXIS 13 ( Ky. 1962 ); Mary Helen Coal Corp. v. Garrett, 354 S.W.2d 26, 1962 Ky. LEXIS 26 ( Ky. 1962 ); Tunstall v. Blue Diamond Coal Co., 359 S.W.2d 614, 1962 Ky. LEXIS 202 (Ky. 1962); Inland Steel Co. v. Mullins, 367 S.W.2d 250, 1963 Ky. LEXIS 15 ( Ky. 1963 ); Blue Diamond Coal Co. v. Terry, 416 S.W.2d 350, 1967 Ky. LEXIS 26 8 ( Ky. 1967 ).

No notice need be given until the employee has a disability from an occupational disease. Mary Helen Coal Corp. v. Chitwood, 351 S.W.2d 167, 1961 Ky. LEXIS 145 ( Ky. 1961 ).

Under subsection (2) of this section it was not necessary that notice of disability be given until the employee’s capacity to perform the work was impaired because of the disease. Gregory v. Peabody Coal Co., 355 S.W.2d 156, 1962 Ky. LEXIS 61 ( Ky. 1962 ).

The duty to notify does not arise before the disease results in an actual impairment of the employee’s capacity to perform his work. Bethlehem Mines Corp. v. Davis, 368 S.W.2d 176, 1963 Ky. LEXIS 37 ( Ky. 1963 ).

An employee is not required to give notice of an occupational disease until he is actually disabled. Cutshin Coal Co. v. Begley, 385 S.W.2d 59, 1964 Ky. LEXIS 115 ( Ky. 1964 ).

The determination of the time when notice should have been given is made from the time the worker discovers he is disabled and it is not enough that the worker simply be advised by a doctor that he has the disease. Caudill v. Jean Coal Co., 571 S.W.2d 633, 1978 Ky. App. LEXIS 593 (Ky. Ct. App. 1978).

Evidence that claimant had been turned down for employment ten and one-half months before he gave notice of disability to his last employer because of arthritis, back trouble, and “dust” but that he did not learn “for sure” that he had silicosis until six weeks before he gave notice supported finding of Board that he gave timely notice of claim. Twin Peak Coal Co. v. Woolum, 467 S.W.2d 134, 1971 Ky. LEXIS 356 ( Ky. 1971 ).

Where claimant filed a claim for disability as soon as he knew of the existence of the disease, which was six and a half years after he had left his employment and six and a half years after his last exposure to the disease, and he had also served a sentence for 18 months in the penitentiary for malicious wounding and cutting during that period, the claim was properly maintained within the statutory limits. Young v. Belcher, 474 S.W.2d 78, 1971 Ky. LEXIS 86 ( Ky. 1971 ).

Shortness of breath alone did not amount as a matter of law to such distinct manifestation of pneumoconiosis as to apprise a worker that he had the disease and must give timely notice of claim to his employer under subsection (2) of this section. Young v. Davis, 474 S.W.2d 357, 1971 Ky. LEXIS 101 ( Ky. 1971 ).

Where claimant quit work in the mines in 1966 allegedly due to breathing difficulties, delayed for more than a year in seeking medical assistance, and testified that he did not know that he had the occupational disease until it was diagnosed in 1970, such evidence indicated that the disease had not reached disabling proportions, in which case the claim would be defeated under former subsection (4) of this section, but assuming that it had, the claim would still be defeated under former subsection (3) of this section because it was reasonable to conclude that the symptoms were reasonably sufficient to apprise the claimant that he had contracted the disease more than a year before his claim was filed. Yocom v. Messer, 487 S.W.2d 946, 1972 Ky. LEXIS 98 ( Ky. 1972 ) (decision prior to 1972 amendment).

While shortness of breath and chest pains did not, as a matter of law, sufficiently apprise a coal miner of the existence of silicosis in order that he might give timely notice, such question was one of fact for determination by the board and the evidence was sufficient to sustain a finding that the notice was not timely filed. Church v. Turner Elkhorn Coal Co., 492 S.W.2d 877, 1973 Ky. LEXIS 536 ( Ky. 1973 ).

Where a coal miner quit work in April of 1971 upon being medically examined and informed that he was suffering from silicosis, and where after remaining idle until June of 1973, the miner returned to work for the same employer for two weeks and only then gave notice of a claim for disability compensation, the miner had a claim for disability when he quit work in 1971 and was required to give notice of claim at that time, thus he could not assert that his notice of claim in 1973 was in time on the theory that his employment in 1973 was a continuation of his former employment and therefore he was not disabled in 1971. Yocom v. Karst, 528 S.W.2d 697, 1975 Ky. LEXIS 77 ( Ky. 1975 ).

Where claimant filed his application two years after he became aware of his condition and was no longer able to work, such notice was not timely. Tyree v. Brown, 564 S.W.2d 31, 1978 Ky. App. LEXIS 493 (Ky. Ct. App. 1978).

Where claimant knew of his penumoconiosis two months prior to his employment with defendant coal company, worked there two months, and gave no notice of disability until two and one-half months later, he failed to give timely notice. Yocom v. Ratliff, 574 S.W.2d 339, 1978 Ky. App. LEXIS 622 (Ky. Ct. App. 1978).

Where an employee returned to his old job, there was a new presumption of nondisability which continued until claimant quit work on August 8, 1975, and because he gave notice of disability to his employer on September 8, 1975, the notice was timely. Caldwell v. Yocom, 574 S.W.2d 913, 1978 Ky. App. LEXIS 635 (Ky. Ct. App. 1978).

Where employee stopped work on July 2, 1973, due to a heart condition, filed a federal black lung claim sometime during 1975 and after he was appraised by a physician in January, 1976, that he had pneumoconiosis he gave written notice to his employer that he would be seeking workers’ compensation benefits, there was substantial evidence to sustain finding that timely notice was given to employer. Kirkwood v. John Darnell Coal Co., 602 S.W.2d 170, 1980 Ky. LEXIS 238 ( Ky. 1980 ).

Lack of timely notice required by subdivision (2)(a) (now (2)) of this section is a bar to a compensation claim, even though no prejudice results to the employer from the lack of timely notice. Special Fund v. Francis, 708 S.W.2d 641, 1986 Ky. LEXIS 263 ( Ky. 1986 ).

Where the claimant had the burden of proving that he gave timely notice to the employer, and the Workers’ Compensation Board ruled that he did not give timely notice, the ruling of the Board could be reversed only if the evidence for claimant was so strong as to reasonably compel a finding in his favor. Special Fund v. Francis, 708 S.W.2d 641, 1986 Ky. LEXIS 263 ( Ky. 1986 ).

Because it was not proven that whatever exposure claimant received after May, 1977 working as a mine safety instructor, was injurious, his claim was not filed within five years of his last injurious exposure as is required by this section; therefore, his claim was barred. Dupree v. Kentucky Dep't of Mines & Minerals, 835 S.W.2d 887, 1992 Ky. LEXIS 56 ( Ky. 1992 ).

A finding of actual incapacity to perform work is not required before an employer can prevail under the defense of untimely notice. Newberg v. Slone, 846 S.W.2d 694, 1992 Ky. LEXIS 188 ( Ky. 1992 ).

While there is no specific time frame for satisfying the notice requirement in injury or occupational disease cases, the discretion for making the determination of whether it was given “as soon as practicable” lies properly with the administrative law judge. Newberg v. Slone, 846 S.W.2d 694, 1992 Ky. LEXIS 188 ( Ky. 1992 ).

Claimant’s five and one-half month delay between the date of diagnosis and notice to his employer was not as soon as practicable where claimant did not give notice when the pneumoconiosis was diagnosed because he wanted to collect unemployment benefits and then collect workers’ compensation benefits. Newberg v. Slone, 846 S.W.2d 694, 1992 Ky. LEXIS 188 ( Ky. 1992 ).

Where notice of former employee’s claim for occupational disease pneumoconiosis was provided to his former employer less than two months after he was first diagnosed as suffering from the disease, the due and timely notice requirement of this section was satisfied. Martin County Coal Corp. v. Preece, 924 S.W.2d 840, 1996 Ky. App. LEXIS 106 (Ky. Ct. App. 1996).

15. — Delay.

The court cannot lay down chronological tables by which one may check the period of time that notice must be made but must look to the facts of each case in order to determine whether the employee performed his duty under the circumstances, which include a reasonable cause for delay. Harlan Fuel Co. v. Burkhart, 296 S.W.2d 722, 1956 Ky. LEXIS 227 ( Ky. 1956 ).

Four months’ delay in giving notice to employer was excused where employer’s physician knew employee was being treated for a lung condition at the time he left employment. United States Steel Corp. v. Birchfield, 296 S.W.2d 726, 1956 Ky. LEXIS 229 ( Ky. 1956 ).

Delay in giving notice is excused only by the employer’s actual knowledge of the claim or by mistake or other reasonable cause and is not excusable merely by the fact that the employer was not prejudiced. Blue Diamond Coal Co. v. Stepp, 445 S.W.2d 866, 1969 Ky. LEXIS 187 ( Ky. 1969 ).

It was error to hold that lack of prejudice was a reason for finding that the delay in giving notice was not fatal to the claim. Blue Diamond Coal Co. v. Blair, 445 S.W.2d 869, 1969 Ky. LEXIS 188 ( Ky. 1969 ).

Where the claimant retired in 1975 because of shortness of breath, he testified that he first knew he had “black lung” in 1979, and he filed for black lung benefits in April or May of 1980 because of what the doctors had previously told him, there was sufficient evidence, if believed by the Workers’ Compensation Board, to permit a finding that the claimant failed to give notice to his employer as soon as practical after he had been informed that he had contracted the disease or had developed symptoms sufficient to so apprise him, and the evidence did not compel a finding otherwise. Special Fund v. Francis, 708 S.W.2d 641, 1986 Ky. LEXIS 263 ( Ky. 1986 ).

Where the claimant did not notify his employer of his intention to file a claim until four months after he had been informed that he had contracted pneumoconiosis and approximately two and one half (21/2) years after he had ceased his employment, the finding of the Workers’ Compensation Board that the employer received due and timely notice was insufficient; once the employer contested the question of notice, it was incumbent upon the Board to make specific findings of fact from which it could support its legal conclusion that the employer had due and timely notice. Kentland Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47, 1988 Ky. App. LEXIS 2 (Ky. Ct. App. 1988).

The notice provision of subdivision (2)(a) (now (2)) of this section is clear and requires notice to an employer when the worker has knowledge of a potentially compensable condition. However, a delay in giving notice may be excused if the worker is able to demonstrate reasonable cause for the delay. Newberg v. Slone, 846 S.W.2d 694, 1992 Ky. LEXIS 188 ( Ky. 1992 ).

If there is a delay in giving notice, the burden is on the claimant to show that it was not practicable to give notice sooner. Newberg v. Slone, 846 S.W.2d 694, 1992 Ky. LEXIS 188 ( Ky. 1992 ).

16. — Of Resistance.

Where the employer has filed a timely Notice of Resistance and has defeated the claim on the merits, former subdivision (2)(b)5. of this section does not require entry of an award for a workers’ compensation claimant against the Special Fund solely for failure to file a timely Notice of Resistance of Claim. Morgan v. Peabody Coal Co., 698 S.W.2d 1, 1985 Ky. App. LEXIS 590 (Ky. Ct. App. 1985) (decision prior to 1996 (1st Ex. Sess.) amendment).

The requirements for filing notice of resistance under former subdivision (2)(b)(5) of this section are mandatory. Cal Glo Coal Co. v. Mahan, 729 S.W.2d 455, 1987 Ky. App. LEXIS 449 (Ky. Ct. App. 1987) (decision prior to 1996 (1st Ex. Sess.) amendment).

17. Claim.

Where employee who had engaged in coal mining for various employers for many years had engaged in actual mining operations for two or three weeks in his last two (2) years of employment, his claim for disability from silicosis against his last employer was allowable. Moore Mining Co. v. Gibbons, 412 S.W.2d 261, 1967 Ky. LEXIS 422 ( Ky. 1967 ).

Where the claimant testified he had always considered himself able to work until the time of his unemployment and there was no medical testimony that his work was impaired before he gave notice of claim, there was nothing in the circumstances shown by the record to warrant a finding that the claimant realized or should have realized that his capacity to work was impaired by reason of silicosis or other physical cause. Blue Diamond Coal Co. v. Blair, 445 S.W.2d 869, 1969 Ky. LEXIS 188 ( Ky. 1969 ).

Where in the two years prior to his claim, a claimant alleging disability from silicosis had only worked 11 shifts in Kentucky and only six months in mining, his claim was barred by this section. Carco Mining Co. v. Ely, 465 S.W.2d 265, 1971 Ky. LEXIS 444 ( Ky. 1971 ) (decision prior to 1972 amendment).

Employee who had been with his last employer for eight years was not barred from recovery of workers’ compensation because he failed to list a former employer on his employment questionnaire and did not mention an unsuccessful disability claim against such employer. Young v. Morris, 475 S.W.2d 505, 1971 Ky. LEXIS 74 ( Ky. 1971 ).

Former subsection (5) (see present subsection (5)(c)) of this section extended to a timely claim arising from an occupational disease the same status as an award, thus invoking the protection of KRS 342.111 (since repealed, see now subsection (3) of KRS 342.730 ) if the employee died after having filed the claim and if the claim proved to be meritorious. Falcon Coal Co. v. Sweet, 518 S.W.2d 343, 1974 Ky. LEXIS 15 ( Ky. 1974 ) (decision prior to 1972 amendment).

Where an employee’s employment application was untruthful in regard to his previous employment and the previous state of his health, the employee’s claim for workers’ compensation for total permanent disability attributable to pneumoconiosis was barred, even though the misstatements and omissions allegedly occurred because employee’s employment application was prepared by his son and he did not read it. Blanton v. Workmen's Compensation Board, 531 S.W.2d 518, 1975 Ky. LEXIS 44 ( Ky. 1975 ).

Where an employee untruthfully stated in his employment application that during a designated five-year period he had been employed as a carpenter when in fact he had been employed as an underground coal miner and where the application also failed to disclose the fact that he had quit work as a coal miner because of severe breathing difficulty, the employee’s workers’ compensation claim for total permanent disability attributable to pneumoconiosis was barred. Blanton v. Workmen's Compensation Board, 531 S.W.2d 518, 1975 Ky. LEXIS 44 ( Ky. 1975 ).

Failure of compliance with statute requiring application be accompanied by two written medical reports justified employer’s motion to dismiss application for workers’ compensation. Yocom v. Workmen's Compensation Board, 535 S.W.2d 75, 1975 Ky. LEXIS 8 ( Ky. 1975 ).

18. — False Representation.

Because claimant made a false representation on his medical history concerning a prior diagnosis of pneumoconiosis, his claim was barred by subsection (6) (now (7)) of this section. The three-prong test set forth in Divita v. Hopple Plastics, 858 S.W.2d 214, 1993 Ky. App. LEXIS 93 (Ky. App. 1993) and codified in KRS 342.165(2) was not applicable to this situation as it applies to false representations concerning prior injuries; subsection (6) (now (7)) of this section applies to false representations concerning occupational disease. Dobson v. McCoy Coal Co., 931 S.W.2d 805, 1996 Ky. LEXIS 106 ( Ky. 1996 ).

19. — Procedure.

When a claim is inadvertently filed without the attachments required by this section, the proper procedure is for the ALJ to issue a show-cause order and direct the worker to supplement the record with any statutorily required documents. If the worker fails to do so within the time allowed in the order, the claim should be dismissed without a consideration of the merits. Scorpio Coal Co. v. Harmon, 864 S.W.2d 882, 1993 Ky. LEXIS 144 ( Ky. 1993 ).

“Consensus” procedure applied to the claimant’s case and dictated that his claim was properly dismissed, as his claim had not been assigned to an administrative law judge prior to the statutory date of July 15, 2002. McClanahan v. Mt. Edge Mining Co., 158 S.W.3d 191, 2005 Ky. LEXIS 89 ( Ky. 2005 ).

20. — Time.

The three months’ interim between knowledge of the claimant and his notice to the company was reasonable notice and “as soon as practicable” within the spirit of this law. Lewallen v. Peabody Coal Co., 306 S.W.2d 262, 1957 Ky. LEXIS 25 ( Ky. 1957 ).

Where compensation has been paid or awarded for disability from occupational disease and the payments have been discontinued, a claim for further compensation made more than one (1) year after the last payment comes too late. Harvey Coal Co. v. Colwell, 313 S.W.2d 274, 1958 Ky. LEXIS 250 ( Ky. 1958 ).

A claim is not barred by the statute of limitations when filed within one (1) year from the claimant’s last injurious exposure even though the claimant knew he had silicosis prior to his last exposure. South-East Coal Co. v. Dingus, 352 S.W.2d 190, 1961 Ky. LEXIS 193 ( Ky. 1961 ).

Where, on preemployment examination, doctor recommended that the employee be not employed in mine where he would be exposed to dust and he did not file claim for more than two years thereafter, the claim for occupational disease was barred by this section. Good v. Russell Fork Coal Co., 387 S.W.2d 842, 1965 Ky. LEXIS 480 ( Ky. 1965 ).

A compensable claim under this section does not exist while the employee continues to work fulltime at full pay for the same employer. Allen v. Commonwealth, Dep't of Highways, 425 S.W.2d 283, 1968 Ky. LEXIS 413 ( Ky. 1968 ).

The basic limitation upon the right to assert the cause of action, once it has arisen, is one (1) year after (a) the last exposure, (b) the occurrence of the disability, or (c) a manifestation of symptoms reasonably sufficient to apprise the claimant that he has contracted the disease, whichever of these three events comes last. Crawford v. V. & C. Coal Co., 432 S.W.2d 403, 1968 Ky. LEXIS 328 ( Ky. 1968 ).

The right to compensation under this section does not necessarily accrue at the time of the last injurious exposure, for there can be no claim or cause of action before the occurrence of a disability. Crawford v. V. & C. Coal Co., 432 S.W.2d 403, 1968 Ky. LEXIS 328 ( Ky. 1968 ).

If the Board properly could permit a defendant to amend a previously filed answer to raise the defense of limitations, it could permit the late filing of an original answer asserting that defense. Caldwell v. Bethlehem Mines Corp., 455 S.W.2d 67, 1970 Ky. LEXIS 246 ( Ky. 1970 ).

The evidence supported the board’s finding that the claimant’s disability occurred on the last day he worked since he never thereafter returned to work even though he claimed his disability was not diagnosed until later. Caldwell v. Bethlehem Mines Corp., 455 S.W.2d 67, 1970 Ky. LEXIS 246 ( Ky. 1970 ).

Where the employer made a plea of limitations and the special fund failed to do so but the plea was not personal but was common to both defendants, the plea inured to the benefit of the special fund. Caldwell v. Bethlehem Mines Corp., 455 S.W.2d 67, 1970 Ky. LEXIS 246 ( Ky. 1970 ).

There is no minimum time requirement for the period of exposure, for “injurious exposure” means only that the conditions were such that they could cause the disease over some indefinite period of time. South East Coal Co. v. Caudill, 465 S.W.2d 62, 1971 Ky. LEXIS 431 ( Ky. 1971 ).

Where the claimant retired in 1964 and in 1968 found that he had silicosis, and probably was disabled at the time of his retirement, the award of maximum benefits was justified. Inland Steel Co. v. Pennington, 465 S.W.2d 78, 1971 Ky. LEXIS 437 ( Ky. 1971 ).

Where claimant had experienced shortness of breath for two years before he quit his job because he “was not able” and it was not until four years later that he was told by a doctor that he had silicosis, evidence supported the board’s findings that his claim was timely and that he became disabled at the time he quit work. Inland Steel Co. v. McCarey, 467 S.W.2d 137, 1971 Ky. LEXIS 357 ( Ky. 1971 ).

Since this section required that there be two years of exposure immediately next before the creation of a condition that would be the basis for a claim for workers’ compensation, the mere fact that the worker did not make a claim for disability compensation prior to his death would not bar his widow’s claim for death benefits. Baldwin v. Gum Branch Coal Co., 494 S.W.2d 524, 1973 Ky. LEXIS 450 ( Ky. 1973 ).

Where claimant filed his claim 22 months after his last exposure to the hazards of disease, 22 months after he had experienced prolonged shortness of breath, smothering and a chronic cough, and 22 months after he had been advised by a physician that he had contracted silicosis, the findings of the board that the claim was not filed within the time limits prescribed by subsection (3) of this section were not clearly erroneous and it was an error to remand the case to the board for further fact finding. Yocom v. Prichard, 523 S.W.2d 883, 1975 Ky. LEXIS 124 ( Ky. 1975 ).

Since the duty to prosecute a claim for disability compensation cannot rationally be deferred indefinitely, a coal miner who quit work in April of 1971 upon being medically examined and informed that he was suffering from silicosis but who failed to give notice of a claim could not base his claim on a subsequent exposure which occurred when the miner returned to work for the same employer for two weeks in 1973. Yocom v. Karst, 528 S.W.2d 697, 1975 Ky. LEXIS 77 ( Ky. 1975 ).

A claim for disability from pneumoconiosis may be filed the moment the disease is discovered and the employee has terminated his employment, and the claim may proceed to an award for such disability as then existed, even though the employee subsequently is reemployed as a miner. Yocom v. Ratliff, 574 S.W.2d 339, 1978 Ky. App. LEXIS 622 (Ky. Ct. App. 1978).

Where the evidence showed that claimant had worked for employer for 27 years before voluntarily quitting on February 2, 1972, because his doctor advised him to do so when he could no longer tolerate the dust to which he was exposed at work, that claimant was informed on May 14, 1975, that he had contracted the occupational disease of silicosis, and that claimant notified his employer of his claim on June 9, 1975, the finding of the Board that notice was timely given, within the requirement of paragraph (a) of subsection (2) of this section, was supported by substantial evidence. Jackson v. General Refractories Co., 581 S.W.2d 10, 1979 Ky. LEXIS 254 ( Ky. 1979 ).

Since a worker cannot be disabled, as far as occupational disease is concerned, so long as the worker continues in full-time employ of the same employer, where the claimant filed her claim almost immediately after she found it necessary to terminate her employment, her claim was not barred under paragraph (a) of subsection (3) (now (4)) of this section, even though she had been experiencing the effects of the disease for several years. Louisville v. Laun, 580 S.W.2d 232, 1979 Ky. App. LEXIS 392 (Ky. Ct. App. 1979).

Where claimant filed three claims for retraining incentive benefits (RIB) under KRS 342.732 , within two years, administrative law judge’s dismissal of the third claim on the grounds that the claimant must wait two years between filing successive claims under subdivision (3)(b) (now (4)(b)) of this section was error. Pikeville Coal Company/Chisholm Coal Co. v. Sullivan, 895 S.W.2d 574, 1995 Ky. LEXIS 42 ( Ky. 1995 ).

21. — Parties.

Where the claimant’s application for adjustment, filed on December 20, 1966 alleged that in 1966 he became affected by lead poisoning which first manifested itself in 1960, the claim should have designated the Commissioner of Labor, as custodian of the special fund, as a defendant. Young v. Allen, 439 S.W.2d 81, 1969 Ky. LEXIS 364 ( Ky. 1969 ).

Where the special fund must be joined as a party, it must be joined in time to enable the special fund to defend. Young v. Allen, 439 S.W.2d 81, 1969 Ky. LEXIS 364 ( Ky. 1969 ).

Where claimant’s disability had been developing after exposure for approximately six years, it was error, under the terms of former paragraph (a) of subsection (13) of this section, to dismiss the special fund as a party. Louisville v. Laun, 580 S.W.2d 232, 1979 Ky. App. LEXIS 392 (Ky. Ct. App. 1979).

The special fund was an indispensable party to claimant’s appeal to the Workers’ Compensation Board where the entire appeal related to a claim of special fund liability. Commonwealth, Dep't of Fin., Div. of Printing v. Drury, 846 S.W.2d 702, 1992 Ky. LEXIS 186 ( Ky. 1992 ).

22. Evidence.

Where the testimony of a doctor that the claimant had silicosis and it prevented him from working in the mines was uncontradicted, the evidence in totality was so strong and persuasive that as a matter of law the Board was required to make the claimant an award of total and permanent disability. Young v. Sturgill, 445 S.W.2d 442, 1969 Ky. LEXIS 163 ( Ky. 1969 ).

Evidence to sustain the issue of exposure to hazards of disease must be of substance and of consequence carrying the quality of proof and having fitness to produce conviction. Rowe v. King-Darby Coals, Inc., 463 S.W.2d 342, 1971 Ky. LEXIS 590 ( Ky. 1971 ).

The decision of the Board that the claimant had not been exposed to silicosis could be overturned by the court only if the evidence of his exposure was so strong as to compel a finding in his favor and so persuasive that it was clearly unreasonable for the Board not to be convinced by it. Rowe v. King-Darby Coals, Inc., 463 S.W.2d 342, 1971 Ky. LEXIS 590 ( Ky. 1971 ).

Under former subsection (13)(a) (deleted by 1996 (Ex. Sess.) amendment) of this section, there must be a showing of such exposure as could cause disease over some indefinite period of time. Rowe v. King-Darby Coals, Inc., 463 S.W.2d 342, 1971 Ky. LEXIS 590 ( Ky. 1971 ).

Where the claimant worked as a night watchman in a closed mine, whose exposure to dust was limited to the dust blowing or being stirred up, the evidence of exposure to the hazards of silicosis was not of a character to compel a finding in his favor or so persuasive as to make the Board’s contrary finding unreasonable. Rowe v. King-Darby Coals, Inc., 463 S.W.2d 342, 1971 Ky. LEXIS 590 ( Ky. 1971 ).

In a contested proceeding the claimant had the duty at the hearing to introduce medical evidence in testimonial form, subject to cross-examination, according to the regular procedures where the claimant was not within the presumption of former subsection (6) of this section. Young v. Daniels, 481 S.W.2d 295, 1972 Ky. LEXIS 249 ( Ky. 1972 ).

Where the medical testimony before the board was in conflict, some doctors testifying that the claimant had silicosis and others testifying that they found no evidence of any occupational disease, such evidence was not so strong in favor of the claimant as to make the board’s finding against him unreasonable. Yocom v. Hamilton, 494 S.W.2d 731, 1973 Ky. LEXIS 457 ( Ky. 1973 ).

Where claimant retired in 1964 and then in November 1968 and January 1969 was advised by doctors that he was suffering from pneumoconiosis, he could not recover compensation under former subsection (4) (see now subsection (4)(b)) of this section since there was no evidence of when he became disabled, and thus it could not be found that his injurious exposure subsisted over the period of two years next before that time. Inland Steel C. v. Terry, 464 S.W.2d 284, 1970 Ky. LEXIS 102 ( Ky. 1970 ) (decision prior to 1972 amendment).

In order to establish compensability under former subsection (4) (see now subsection (4)(b)) of this section, it was necessary that the exposure existed in Kentucky for at least two years immediately preceding disability, as the term disability has been construed by this court in occupational disease cases, and that the continuity of exposure during that time was without substantial interruption regardless of where the claimant was or what he was doing during the periods of interruption. Inland Steel C. v. Terry, 464 S.W.2d 284, 1970 Ky. LEXIS 102 ( Ky. 1970 ) (decision prior to the 1972 amendment).

Where three of the four physicians found evidence of pneumoconiosis and it was their opinion that the claimant was totally disabled from working in a dusty environment such as underground coal mining, his persistent efforts to resume work after his alleged disability did not defeat his claim for benefits, and the evidence was sufficient to establish the onset of his disability and exposure to the hazards of pneumoconiosis for two years preceding the onset, as required by subsection (4) (see now subsection (4)(b)) of this section. Yocom v. Keene, 512 S.W.2d 27, 1974 Ky. LEXIS 389 ( Ky. 1974 ) (decision prior to 1972 amendment).

Where the employee claimed that she suffered an allergic reaction to chemicals which emanated from computer terminals, and hence, that she was entitled to an award of benefits as a result of having contracted an occupational disease, and all the proof adduced was directed to the issue of whether she frequently got sick at work because she was allergic to some unidentified chemical substance which emanates from computers, the Workers’ Compensation Board’s finding that she sustained a work-connected injury was not supported by substantial evidence, and the Board should have made findings comporting with this section. Farmers Rural Electric Cooperative Corp. v. Cooper, 715 S.W.2d 478, 1986 Ky. App. LEXIS 1209 (Ky. Ct. App. 1986).

It is apparent when reviewing the American Medical Association’s Guides to the Evaluation of Permanent Impairment, upon which the Legislature relied in drafting KRS 342.732 and this section, that depressed spirometric test values may measure respiratory impairment caused by factors other than exposure to coal dust. Therefore, in a claim for benefits pursuant to KRS 342.732 (1)(b) the claimant must prove not only that his spirometric test results indicate the requisite degree of respiratory impairment, he must also prove that his exposure to coal dust was a significant factor in causing the impairment. Newberg v. Reynolds, 831 S.W.2d 170, 1992 Ky. LEXIS 71 ( Ky. 1992 ).

It is evident that the Legislature was precise in setting forth the standards of proof required in a coal workers’ pneumoconiosis claim pursuant to KRS 342.732(1)(b). A claimant must prove that he has contracted pneumoconiosis and that the disease results from a work-related exposure to coal dust. While the diagnosis of coal-worker’s pneumoconiosis, based on reading of a claimant’s X-rays, is dependent on the subjective interpretation of those X-rays by the radiologist, the Legislature prescribed both the standards for acceptable X-rays and the classification system to be used in interpreting them. Newberg v. Reynolds, 831 S.W.2d 170, 1992 Ky. LEXIS 71 ( Ky. 1992 ).

Claimant introduced lay testimony that after his duties changed in May, 1977, he was at times exposed to coal dust and that he inhaled coal dust while teaching and performing his other duties as safety instructor at mine sites. While such lay testimony may prove that claimant was at times exposed to coal dust and that he inhaled coal dust, such evidence alone cannot, as a matter of law, prove that the exposure claimant received after May, 1977, was of such a magnitude and frequency as would have independently caused the disease for which he was claiming benefits. Such proof of causation requires competent medical evidence, and there was no medical evidence as to this particular fact. Dupree v. Kentucky Dep't of Mines & Minerals, 835 S.W.2d 887, 1992 Ky. LEXIS 56 ( Ky. 1992 ).

In view of the language of KRS 342.732(1)(a), positive ILO X-ray reports, when coupled with evidence of at least the minimum overall work-related exposure to coal dust as set forth in this section, would support, but would not necessarily compel, an award of retraining incentive benefits. Scorpio Coal Co. v. Harmon, 864 S.W.2d 882, 1993 Ky. LEXIS 144 ( Ky. 1993 ) (decision prior to 1996 (1st Ex. Sess.) amendment).

Sufficient evidence supported a determination that 30% of workers’ occupational disability resulted from ammonia exposure, and was therefore compensable, while 70% was due to chronic obstructive pulmonary disease (COPD) caused by cigarette smoking, and as a corollary, was noncompensable. Thompson v. Fischer Packing Co., 883 S.W.2d 509, 1994 Ky. App. LEXIS 108 (Ky. Ct. App. 1994).

Where an ALJ held that an employee’s hearing loss was due to cumulative trauma, and that the claim was barred by limitations because the employee did not prove an impairment that was attributable to the two years before the claim was filed, the appellate court properly reversed the ALJ’s decision, as the evidence overwhelmingly demonstrated an increased hearing loss during the period from two years before the claim was filed and the date when the employee stopped working. Tanks v. Roark, 104 S.W.3d 753, 2003 Ky. LEXIS 17 ( Ky. 2003 ).

23. — Statutory Presumptions.

When the employer and the special fund introduce probative medical evidence that the worker does not suffer from pneumoconiosis, the board is not entitled to rely on the statutory presumptions. Wells v. Hamilton, 645 S.W.2d 353, 1983 Ky. App. LEXIS 275 (Ky. Ct. App. 1983).

Where claimant alleging that he suffered from pneumoconiosis complied with subsection (1) of this section and performed his duty to introduce testimonial medical evidence to prove his claim, the burden shifted to employer and special fund to rebut those presumptions by introducing evidence that claimant did not suffer from pneumoconiosis. When employer and fund met their burden by introducing the testimonial medical evidence of four physicians, the statutory presumptions disappeared, and the board was not entitled to rely on them in rendering its award; rather, in accordance with its statutory duty as fact finder, the board was required to consider the conflicting medical evidence and to make an independent factual determination as to whether claimant suffered from pneumoconiosis based on the medical evidence adduced. Wells v. Hamilton, 645 S.W.2d 353, 1983 Ky. App. LEXIS 275 (Ky. Ct. App. 1983).

24. — Burden of Proof.

Where the claimant established that he had contracted silicosis, and there was no proof that he had the disease when he began working in employer’s mine in 1933, and his proof did show that the rock strata at the mine in the areas where he did his last drilling contained large amounts of silica, and also that on occasions there was a large amount of dust in the air while drilling was being done, his proof was sufficient to meet the burden placed upon him of proving that silicosis was contracted while he was working in employer’s coal mine under conditions prescribed in this section. United States Steel Co. v. Lockhart, 261 S.W.2d 643, 1953 Ky. LEXIS 1041 ( Ky. 1953 ).

Technical proof of the presence of free silica is not required and it is not necessary for the employee to prove a continuous exposure to the hazard for a period of two years. United States Coal & Coke Co. v. Hooks, 286 S.W.2d 918, 1956 Ky. LEXIS 437 ( Ky. 1956 ).

This section is not intended to require a specific number of days, or even hours, of exposure to silica dust; it is intended to limit or qualify the class of employees who may become entitled to compensation benefits for silicosis. Mary Helen Coal Corp. v. Parrott, 290 S.W.2d 477, 1956 Ky. LEXIS 322 ( Ky. 1956 ).

It is not required that the employee prove he did contract silicosis in his last employment but only that the conditions were such that they could cause the disease over some indefinite period of time. Childers v. Hackney's Creek Coal Co., 337 S.W.2d 680, 1960 Ky. LEXIS 365 ( Ky. 1960 ). See Blue Diamond Coal Co. v. Napier, 337 S.W.2d 879, 1960 Ky. LEXIS 371 ( Ky. 1960 ).

Under this section liability is imposed on the employer in whose employment the employee “was last injuriously exposed to the hazard of the disease” and the fact that such disease had been manifested prior to the last exposure is immaterial. Gibson v. Blue Diamond Coal Co., 342 S.W.2d 698, 1961 Ky. LEXIS 398 ( Ky. 1961 ).

The employee, in order to establish liability on the part of his last employer, must merely prove that the conditions in this last employment were such that over some indefinite period of time they could have caused the disease which led to this disability. W. M. Coal Co. v. Campbell, 344 S.W.2d 794, 1961 Ky. LEXIS 244 ( Ky. 1961 ).

The burden of persuading the board that the claimant had been exposed to the hazard of silicosis, and when, rested with the claimant. Rowe v. King-Darby Coals, Inc., 463 S.W.2d 342, 1971 Ky. LEXIS 590 ( Ky. 1971 ).

Where employee died of leukemia, uncontradicted medical testimony that the decedent’s death was a result of breathing paint fumes was considered by the Board to constitute more a hypothesis than a theory and was too speculative and not sufficient to establish that the deceased employee contracted a compensable occupational disease which arose out of and in the course of his employment. Logan Co. v. Amic, 479 S.W.2d 1, 1972 Ky. LEXIS 281 ( Ky. 1972 ).

Where one specialist found emphysema and no chronic bronchitis and another specialist found chronic bronchitis but no emphysema, but both stated categorically that in their opinions the claimant did not have pneumoconiosis, the overwhelming weight of evidence did not require a finding of a disability resulting from the occupational disease of silicosis or pneumoconiosis. Thacker v. Republic Steel Corp., 484 S.W.2d 832, 1972 Ky. LEXIS 150 ( Ky. 1972 ).

Where the claimant presented the testimony of seven doctors who urged that X-ray evidence would have shown that the claimant had pneumoconiosis when he left the mines but none stated that he was disabled and where the claimant at no time stated he quit because he was disabled, the claimant failed to show exposure to hazards of disease for at least two years immediately next before his disability. Daniel v. Princess Coals, Inc., 497 S.W.2d 939, 1973 Ky. LEXIS 378 ( Ky. 1973 ).

It was not an abuse of discretion for the Workers’ Compensation Board to refuse to reopen a case to consider claimant’s deposition to effect that he had been employed as truck driver where claimant knew he had been employed as truck driver for four months during two-year period preceding disability from silicosis, four-month gap in his work history was apparent on his application for benefits, and he was repeatedly given extensions of time to complete proof. Yocom v. Butcher, 551 S.W.2d 841, 1977 Ky. App. LEXIS 715 (Ky. Ct. App. 1977).

Until there is some evidence that the employee has sustained an exposure at more than one place of employment, the special fund’s burden to prove conclusively which exposure caused the disability does not arise; the mere listing of multiple employers in the application for benefits alone will not cause this burden to be shifted to the special fund. Stovall v. Mullen, 674 S.W.2d 526, 1984 Ky. App. LEXIS 552 (Ky. Ct. App. 1984).

Where the employee performed his duty to introduce medical evidence to prove his claim, the burden shifted to the employer to rebut the presumption with evidence that the employee did not suffer from pneumoconiosis. Cal Glo Coal Co. v. Mahan, 729 S.W.2d 455, 1987 Ky. App. LEXIS 449 (Ky. Ct. App. 1987).

The following factors must be present before a false statement in an employment application will bar benefits: (1) The employee must have knowingly and wilfully made a false representation as to his physical condition; (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring; (3) There must have been a causal connection between the false representation and the injury. Divita v. Hopple Plastics, 858 S.W.2d 214, 1993 Ky. App. LEXIS 93 (Ky. Ct. App. 1993).

25. — Presumption.

The presumptions contained in former subdivision (2)(b)2 and former subsection (5) of this section do not arise until after the existence of a compensable pneumoconiosis is proven. Kington v. Zeigler Coal Co., 639 S.W.2d 560, 1982 Ky. App. LEXIS 253 (Ky. Ct. App. 1982).

26. — Out-of-State.

Where the claimant had worked in mines in Kentucky before working ten shifts in Virginia and then returning to Kentucky, where he worked for a period of time before discovering he had silicosis, the out-of-state exposure was so minimal as to be insufficient to bar recovery under this section. Shackleford Coal Co. v. Hamby, 445 S.W.2d 430, 1969 Ky. LEXIS 158 ( Ky. 1969 ), limited, South East Coal Co. v. Caudill, 465 S.W.2d 62, 1971 Ky. LEXIS 431 ( Ky. 1971 ).

Where the claimant worked out of the state part of the time but was substantially exposed in Kentucky during the two-year period immediately before he was finally disabled and the defendant was the employer in whose service he was last injuriously exposed in Kentucky, he was entitled to compensation. South East Coal Co. v. Ison, 446 S.W.2d 638, 1969 Ky. LEXIS 132 ( Ky. 1969 ), limited, South East Coal Co. v. Caudill, 465 S.W.2d 62, 1971 Ky. LEXIS 431 ( Ky. 1971 ).

An out-of-state exposure to the hazards of the disease during a period of ten and one-half months immediately preceding the date on which the employee ceased work could not be considered “minimal” or “nonsubstantial.” South East Coal Co. v. Caudill, 465 S.W.2d 62, 1971 Ky. LEXIS 431 ( Ky. 1971 ).

Administrative law judge (ALJ) properly awarded benefits for disability proven to have existed at the time claimant left Kentucky employer’s employ, although not diagnosed until he began working in another state. Coal Dust Coal Co. v. Stiltner, 905 S.W.2d 859, 1995 Ky. LEXIS 100 (Kan. 1995).

27. — Limitations.

The two-year provision of this section designates the period of time which an employee must be exposed to the hazards of silicosis in his employment within this state, but it does not specify how frequent or how intense the exposure must be during the two-year period. Mary Helen Coal Corp. v. Parrott, 290 S.W.2d 477, 1956 Ky. LEXIS 322 ( Ky. 1956 ).

Where the claimant was last injuriously exposed to the occupational hazard prior to the enactment of the limitation statute and contended he should be provided a reasonable time after the enactment of the statute to file his claim waiting over five (5) years since his last employment and over three (3) years since the limitation became effective was more than a reasonable period and the claim was barred. Sammons v. Turner Elkhorn Mining Co., 430 S.W.2d 340, 1968 Ky. LEXIS 403 ( Ky. 1968 ).

The enactment of the amendment establishing a five (5) year limitation from last injurious exposure on filing claims did not operate unreasonably in limiting the time in which defendant’s claim could be discovered and asserted to three months and six (6) days after its effective date. Crawford v. V. & C. Coal Co., 432 S.W.2d 403, 1968 Ky. LEXIS 328 ( Ky. 1968 ).

The five (5) year “catchall” provision reduces one (1) year limitation upon right to assert cause of action when either occurrence of disability or manifestation of symptoms indicative of disease occurs more than four years after last exposure. Crawford v. V. & C. Coal Co., 432 S.W.2d 403, 1968 Ky. LEXIS 328 ( Ky. 1968 ).

The two (2) year period immediately next before the disability matured has been defined as the time during which, rather than for which, the employee must be exposed to the hazards of silicosis in his employment within this state. South East Coal Co. v. Ison, 446 S.W.2d 638, 1969 Ky. LEXIS 132 ( Ky. 1969 ), limited, South East Coal Co. v. Caudill, 465 S.W.2d 62, 1971 Ky. LEXIS 431 ( Ky. 1971 ).

The failure of the special fund to affirmatively plead limitations effected a waiver of the right to rely upon this defense. Young v. Tackett, 481 S.W.2d 661, 1972 Ky. LEXIS 261 ( Ky. 1972 ).

This section allows a claim to be made for three (3) years after a disease becomes known and disabling, but it also enacts a maximum five (5) year limit from the time of the last exposure; where claim was not filed within the five (5) year requirement of subsection (3) (now (4)(a)) of this section, the claim was barred. Armco, Inc. v. Felty, 683 S.W.2d 641, 1985 Ky. App. LEXIS 505 (Ky. Ct. App. 1985).

28. — Spirometric Testing.

When considering KRS 342.732(2), subdivision (2)(b)2.b. (now (3)(b)2.) of this section, and the American Medical Association’s guidelines, it appears that the Legislature intended that all reported spirometric test values be used to determine the level of benefits to award. The administrative law judge is to consider the totality of all valid and reliable spirometric tests performed on employees. Where the values exceeded 80 percent of employee’s predicted normal capacity, his claim was limited to the benefits provided by KRS 342.732(1)(a). Watkins v. Ampak Mining, Inc., 834 S.W.2d 699, 1992 Ky. App. LEXIS 167 (Ky. Ct. App. 1992).

Administrative law judge did not have the discretion to choose pre-bronchodilator or post-bronchodilator tests results in a workers’ pneumoconiosis claim as both pre-bronchodilator and post-bronchodilator results are contemplated as valid predictors of respiratory impairment. Fields v. Carbon River Coal Co., 920 S.W.2d 880, 1996 Ky. App. LEXIS 64 (Ky. Ct. App. 1996).

Both pre-bronchodilator and post-bronchodilator spirometric testing used to calculate forced expiratory volume (FVC) and forced expiratory volume in one second (FEV1) values are equally instructive in determining a workers’ respiratory impairment under state’s statutory scheme. Fields v. Carbon River Coal Co., 920 S.W.2d 880, 1996 Ky. App. LEXIS 64 (Ky. Ct. App. 1996).

29. — X-Rays.

A claim for retraining incentive benefits based on coal worker’s pneumoconiosis must be accompanied by two (2) chest x-rays and the reports thereof. Scorpio Coal Co. v. Harmon, 864 S.W.2d 882, 1993 Ky. LEXIS 144 ( Ky. 1993 ) (Decision prior to 2002 amendment).

It was not required pursuant to KRS 342.316 that opacities be found in the same lung zones for X-ray interpreters to reach a consensus, but it was only required that the opacities be found in a profusion that was no more than one level apart and since that was true of the claimant’s case, his coal workers’ pneumoconiosis claim was properly dismissed. McClanahan v. Mt. Edge Mining Co., 158 S.W.3d 191, 2005 Ky. LEXIS 89 ( Ky. 2005 ).

To the extent that KRS 342.316 and the regulations promulgated thereunder preclude the use of additional X-ray evidence in rebuttal in a coal-worker’s pneumoconiosis claim, they violate the parties’ due-process rights under U.S. Const. amend. XIV and Ky. Const. § 2. Bartrum v. Hunter Excavating, 2004 Ky. App. LEXIS 156 (Ky. Ct. App. May 28, 2004), aff'd in part and rev'd in part, 168 S.W.3d 381, 2005 Ky. LEXIS 151 ( Ky. 2005 ).

30. Disability.

So long as a man is able to carry out his duties, though he may suffer while doing it, he is not yet disabled within the meaning of this section. Bethlehem Mines Corp. v. Davis, 368 S.W.2d 176, 1963 Ky. LEXIS 37 ( Ky. 1963 ).

An employee is not to be considered disabled so long as he continues in full-time employment of the same employer for the purpose of notice to the employer under this section. Stephens Elkhorn Coal Co. v. Tibbs, 374 S.W.2d 504, 1963 Ky. LEXIS 179 ( Ky. 1963 ). See Alva Coal Corp. v. Trosper, 375 S.W.2d 406, 1964 Ky. LEXIS 418 ( Ky. 1964 ).

So long as the employee, after first acquiring knowledge that he has the disease, continues to be employed in full-time employment by the same employer he cannot be considered to be disabled within the meaning of this section. American Radiator & Standard Sanitary Corp. v. Gerth, 375 S.W.2d 817, 1964 Ky. LEXIS 435 ( Ky. 1964 ).

A “disability” occurs under this section only when in fact it results in a cessation or curtailment of performance. Allen v. Commonwealth, Dep't of Highways, 425 S.W.2d 283, 1968 Ky. LEXIS 413 ( Ky. 1968 ).

31. — Determination.

A worker is not disabled so long as he can continue to perform his duties to the satisfaction of his employer, even though he experiences discomfort in doing so. Lovell v. Osborne Mining Corp., 395 S.W.2d 596, 1965 Ky. LEXIS 157 ( Ky. 1965 ).

Since the existence or nonexistence of disability is a key fact as concerns the requirement of giving notice, a specific finding was required of whether the claimant was disabled from silicosis at or about the time he was given the diagnosis that he had silicosis. Blue Diamond Coal Co. v. Stepp, 445 S.W.2d 866, 1969 Ky. LEXIS 187 ( Ky. 1969 ).

The worker should be deemed to be disabled from silicosis, for the purpose of the notice requirements, when circumstances exist from which the worker realizes or reasonably should realize that his capacity to perform his work is impaired by reason of silicosis. Blue Diamond Coal Co. v. Stepp, 445 S.W.2d 866, 1969 Ky. LEXIS 187 ( Ky. 1969 ); Caudill v. Jean Coal Co., 571 S.W.2d 633, 1978 Ky. App. LEXIS 593 (Ky. Ct. App. 1978).

The board was in error in finding the claimant partially disabled for the period of time he continued to work after the time he was advised of his condition until the time he had to cease work for, so long as the claimant was able to satisfy the requirements of his occupation, he was not “disabled.” South East Coal Co. v. Ison, 446 S.W.2d 638, 1969 Ky. LEXIS 132 ( Ky. 1969 ), limited, South East Coal Co. v. Caudill, 465 S.W.2d 62, 1971 Ky. LEXIS 431 ( Ky. 1971 ).

The uncontradicted testimony of claimant that he was physically unable to work since he left the mines in 1965, and the substantial medical evidence that in 1969 and 1970 claimant suffered from stage II pneumoconiosis, supported the findings that the claimant was totally and permanently disabled from pneumoconiosis in 1965 and was exposed to the hazard of disease in his employment for at least two years immediately next before his disability. Young v. Davis, 474 S.W.2d 357, 1971 Ky. LEXIS 101 ( Ky. 1971 ).

Where a claimant who retired from work in 1965 and was diagnosed as having silicosis in 1970 failed to establish by any substantial evidence the date of the commencement of his disability from silicosis, claimant failed to show an exposure to the hazards of the disease for two years immediately next before his disability as required by former subsection (4) of this section. Young v. West, 478 S.W.2d 727, 1972 Ky. LEXIS 343 ( Ky. 1972 ) (decision prior to 1972 amendment).

Where statements of the claimant and one of the owners of the coal company conflicted as to the duration of a claimant’s employment and where the company had no record of the date of commencement or termination of the claimant’s employment, the finding of the Board that the claimant was employed by the company for two years immediately next before his disability was not clearly erroneous and was not disturbed. Young v. Kimbler, 479 S.W.2d 899, 1972 Ky. LEXIS 328 ( Ky. 1972 ).

Where claimant afflicted with silicosis failed to establish exposure in Kentucky to the hazards of the disease for at least two years immediately next before the disability, the claimant was not entitled to a workers’ compensation award. Young v. Hale, 485 S.W.2d 501, 1972 Ky. LEXIS 132 ( Ky. 1972 ).

Where claimant was working in a refrigerated room where extremely cold temperatures were maintained, the employee who was supposed to have remained at the door to release him left and, as a result, the claimant passed out from the extreme cold, such evidence failed to establish any connection between the accident and claimant’s subsequent nervousness and excessive drinking habits for which he sought compensation. Parker Seal Co. v. Russell, 487 S.W.2d 280, 1972 Ky. LEXIS 63 ( Ky. 1972 ).

Having failed to establish by any substantial evidence the date of the commencement of his disability from silicosis, it followed that the claimant failed to show an exposure to the hazards of the disease two years immediately next before his disability. Yocom v. Loughrin, 497 S.W.2d 724, 1973 Ky. LEXIS 370 ( Ky. 1973 ).

Although plaintiff testified that he was not able to work, did not know of any kind of work that he could do, and did not show any application for or refusal of other employment or that he had made any investigation whatever as to the availability of other work, the employer did not demonstrate the availability of other regular employment and, in view of the fact that plaintiff’s education, work experience and physical condition limited his job opportunities, and in the absence of any countervailing evidence as to the availability of regular work in the area which he could perform, the Board’s finding of total disability was proper. Yocom v. Keene, 512 S.W.2d 27, 1974 Ky. LEXIS 389 ( Ky. 1974 ) (decision prior to 1972 amendment).

When a coal miner quit work in April of 1971 upon being medically examined and informed that he was suffering from silicosis, and where, after remaining idle until June of 1973, the miner returned to work for the same employer for two weeks and only then gave notice of a claim for disability, the miner could not maintain that he was only partially disabled when he quit work in 1971 and that he sustained additional disability by his two week work episode in 1973. Yocom v. Karst, 528 S.W.2d 697, 1975 Ky. LEXIS 77 ( Ky. 1975 ).

Where the board expressly accepted as true the evidence presented by the special fund to the effect that the claimant was not affected with pneumoconiosis, the rebuttable presumption that disability relating to pulmonary disfunction was work related did not apply. Robinson v. Crider Mining Co., 533 S.W.2d 530, 1976 Ky. LEXIS 113 ( Ky. 1976 ).

Where the board rejected a diagnosis of pneumoconiosis in a mine worker’s claim for disability benefits, the board could not summarily eliminate from consideration the existence of another disease, though common to the general public, if there was competent evidence that it contributed to claimant’s disability and that his work was a causative factor in it. Robinson v. Crider Mining Co., 533 S.W.2d 530, 1976 Ky. LEXIS 113 ( Ky. 1976 ).

The continuation of a worker in fulltime employment by the same employer creates a conclusive presumption of nondisability, but once there is a cessation of employment the presumption of nondisability disappears. Caldwell v. Yocom, 574 S.W.2d 913, 1978 Ky. App. LEXIS 635 (Ky. Ct. App. 1978).

Where permanent total disability resulted from a preexisting active disability and where the subsequent injury itself was sufficient to cause temporary total disability, the “whole man theory” should not be limited to a situation in which the subsequent injury alone is sufficient to cause temporary total disability. Ingersoll-Rand Co. v. Rule, 867 S.W.2d 205, 1993 Ky. App. LEXIS 132 (Ky. Ct. App. 1993).

32. Award.

Where subsequent traumatic injury was sufficient to cause the claimant’s total disability and caused him to leave the labor market, and the presence of silicosis, an earlier condition, was also found to be sufficient in itself to cause total disability, considering the entire statutory scheme the liability for payment of award rested with the employer under the situation. Beth-Elkhorn Corp. v. Young, 474 S.W.2d 64, 1971 Ky. LEXIS 80 ( Ky. 1971 ).

Where evidence was presented which tended to show that claimant was affected with pneumoconiosis in the early stages, that he was currently operating a grocery store, and that he was not totally and permanently disabled, the board did not err in awarding 50% permanent partial disability. Deaton v. Blair Fork Coal Co., 487 S.W.2d 955, 1972 Ky. LEXIS 104 ( Ky. 1972 ).

Although the board did not specifically find that claimant had been totally and permanently disabled from pneumoconiosis, its award of maximum benefits during the remainder of his life from a condition shown without contradiction to be incurable and irreversible necessarily implied it. Falcon Coal Co. v. Sweet, 518 S.W.2d 343, 1974 Ky. LEXIS 15 ( Ky. 1974 ).

Dependent widow of minor who had filed a valid disability claim during his lifetime but died from unrelated causes is entitled to his workers’ compensation award. Yocom v. Chapman, 542 S.W.2d 510, 1976 Ky. LEXIS 26 ( Ky. 1976 ).

KRS 342.730(1)(b) prior to its 1996 (1st Ex. Sess.) amendment required that permanent, partial disability payments be made for 425 weeks from the date of the disability, that a period of temporary total disability shall extend the 425-week period, and that no weekly benefit greater than that for the total disability shall be paid; subsection (1)(b) of this section requires that payments for income benefits related to pneumoconiosis begin on the date of the last injurious exposure; therefore, it was not error to run the occupational disease award concurrently with the 38-week period of temporary, total disability even though this would result in a loss to claimant of 38 weeks’ worth of occupational disability payments because he could not receive more than total disability benefits at a given time. Beale v. Robinson, 822 S.W.2d 856, 1991 Ky. LEXIS 80 ( Ky. 1991 ).

In those instances where an award has been appealed, the award becomes final for the purposes of subsection (1)(b) of this section when the appellate process has been exhausted. Meade v. Spud Mining, 949 S.W.2d 584, 1997 Ky. LEXIS 65 ( Ky. 1997 ).

33. — Lack of Evidence.

Where the record was devoid of any evidence that the claimant was ever exposed to any hazard known to cause the disease from which he suffered except at his last place of employment, the board’s finding that the claimant was exposed in more than one employment was clearly erroneous; thus, the board erred when it apportioned the disability award and held the special fund liable for 75% of the award and the employer liable for 25% thereof. Stovall v. Mullen, 674 S.W.2d 526, 1984 Ky. App. LEXIS 552 (Ky. Ct. App. 1984).

34. — — Retraining incentive benefits.

The 208-week period contemplated by KRS 342.732(1)(a) must begin on the date upon which the retraining incentive benefit award becomes final and continue, uninterrupted, until it expires. Meade v. Spud Mining, 949 S.W.2d 584, 1997 Ky. LEXIS 65 ( Ky. 1997 ).

35. Liability.

Employee went to work for defendant coal company and after working less than two hours became unconscious. After regaining consciousness he informed his foreman that he felt ill and had to leave and five days later, he was examined by a physician and diagnosed with pneumoconiosis. Although employee had previously worked for another coal company for some 13 years, defendant coal company was liable for payment of a retraining incentive benefit awarded under KRS 342.732 for subsection (10)(c) (see now (10)) of this section clearly and unequivocally states that the employer in whose employment the employee was last exposed to the hazard of the disease shall alone be liable for payment of a retraining incentive benefit. Howell v. Shelcha Coal Co., 834 S.W.2d 693, 1992 Ky. App. LEXIS 190 (Ky. Ct. App. 1992).

36. — Apportionment.

Where employee was totally disabled as a result of an injury while at work and it was later found that he was also totally disabled from silicosis for which special fund was liable, an award imposing complete liability on the employer for permanent disability so long as the disability was attributable to the injury at work was proper. Estep Coal Co. v. Ward, 421 S.W.2d 367, 1967 Ky. LEXIS 60 ( Ky. 1967 ).

Where the claimant was 25% disabled as a result of an accident but also disabled by occupational disease, after the award of 25%, the case was remanded to the board for apportionment between the employer and special fund of the disability for occupational disease. Young v. Sturgill, 445 S.W.2d 442, 1969 Ky. LEXIS 163 ( Ky. 1969 ).

Where the claimant was disabled by byssinosis from inhaling cotton fibers due to her hypersensitivity, the board was correct in apportioning the permanent partial 60 percent against the employer and 40 percent against the special fund. Ashland Crafts, Inc. v. Young, 451 S.W.2d 607, 1970 Ky. LEXIS 398 ( Ky. 1970 ).

Board, in making an “open-end” award, should have apportioned it between the last employer and the special fund. University Louisville v. Pound, 467 S.W.2d 362, 1971 Ky. LEXIS 375 ( Ky. 1971 ).

Since the only significant exposure of claimant to the hazards of the disease of asbestosis was with the employer, the employer was required to pay claimant 60% of the award and the special fund was required to pay 40% of the award. Yocom v. Gentry, 535 S.W.2d 850, 1976 Ky. LEXIS 94 ( Ky. 1976 ).

Where coal miner found to be totally disabled from pneumoconiosis had worked for more than one coal company, only the last of which was located in Kentucky, and the last exposure occurred subsequent to January 1, 1973, the effective date of repeal of the former statute requiring two years’ exposure in Kentucky prior to disability, there was “multiple exposure” such that apportionment for liability for compensation benefits at 75 percent against the special fund and 25 percent against the employer was proper. Yocum v. Lester, 544 S.W.2d 234, 1976 Ky. LEXIS 22 ( Ky. 1976 ).

Award of Workers’ Compensation Board to claimant permanently disabled from the occupational disease, silicosis, was properly apportioned as if the disability resulted from a single occupational exposure because, although claimant had worked for a plywood company for 10 years and as a sandblaster for six years, employment in lumber yards is an occupation not generally recognized as producing occupational diseases such as silicosis while work as a sandblaster does expose the employee to silica or sand. Broadway Rubber Co. v. Cecil, 553 S.W.2d 697, 1977 Ky. App. LEXIS 749 (Ky. Ct. App. 1977).

Apportioned awards must be paid by the employer who may then have reimbursement from the special fund and, if the employer cannot pay the award, the claimant must proceed against the uninsured employers fund which, if it is determined to be liable, may have reimbursement against the special fund for the portion of the award assessed to the special fund. Yocum v. Stewart, 557 S.W.2d 904, 1977 Ky. App. LEXIS 844 (Ky. Ct. App. 1977) (decision prior to 1974 amendment).

Where a claimant’s first claim for compensation for pneumoconiosis was denied because his employer had elected not to be covered by the Workmen’s (now Workers’) Compensation Act, but he later returned to work and filed a second claim after the act became mandatory, the board’s failure to apportion the disability caused by the two different work periods was error since, although the statute of limitations barred the first claim, disability incurred due to the second exposure was compensable. Yocom v. Hayden, 566 S.W.2d 776, 1978 Ky. App. LEXIS 527 (Ky. Ct. App. 1978).

Because KRS 342.732(1)(b) requires the use of the American Medical Association’s Guides to the Evaluation of Permanent Impairment to calculate the reported values of occupational disability as a percent of the predicted normal value, the administrative law judge did have the authority to check the medical expert’s calculated percentage to ascertain that the Guides were used and used correctly. Newberg v. Wright, 824 S.W.2d 843, 1992 Ky. LEXIS 27 ( Ky. 1992 ).

Where workers’ compensation benefits that are payable under an injury award offset benefits that would otherwise be due for occupational disease, it is the compensation that the worker will actually receive for the occupational disease that must be apportioned between the employer and the special fund pursuant to former KAR 342.316(10), not the number of weeks of the award. Whittaker v. Thornsberry, 72 S.W.3d 585, 2002 Ky. LEXIS 82 ( Ky. 2002 ), amended, 2002 Ky. LEXIS 81 (Ky. Apr. 25, 2002).

37. — Special Fund.

Where an award was made against the special fund but the special fund was not made a party until the entry of the award, the case was remanded to the Workers’ Compensation Board for such further proceedings as necessary to provide the special fund a reasonable opportunity to defend. Young v. Allen, 439 S.W.2d 81, 1969 Ky. LEXIS 364 ( Ky. 1969 ).

Where the employer had elected to operate under the Workers’ Compensation Act but on the last day of the exposure of the employee did not have workers’ compensation insurance coverage under a bona fide insurance policy, nor had he complied as a self-insurer under the act, the special fund could be required to pay all or part of an award for the occupational disease of pneumoconiosis and/or silicosis. Young v. Young, 453 S.W.2d 277, 1970 Ky. LEXIS 305 ( Ky. 1970 ).

In cases of disability from silicosis the liability of the special fund is not derivative, but is primary, subject to partial relief on conclusive proof that the disease was the result of exposure in the last employment of six months or more. Yocom v. Kiser, 491 S.W.2d 819, 1973 Ky. LEXIS 603 ( Ky. 1973 ).

Where the medical testimony concerning total disability from silicosis was that the silicosis was not alone the result of exposure during the period of claimant’s last employment, but was accumulative over his entire underground experience, the silicosis was not conclusively proved to have been the result of the last exposure and the special fund was liable for the entire compensation. Yocom v. Kiser, 491 S.W.2d 819, 1973 Ky. LEXIS 603 ( Ky. 1973 ).

The Special Fund was liable to the extent of 40% where the claimant’s death from a blood disease was caused by exposure to chemicals with which he worked and to which he was exposed during his work years. Stauffer Chemical Co. v. Greenwell, 713 S.W.2d 825, 1986 Ky. App. LEXIS 1206 (Ky. Ct. App. 1986).

Where an employer and employee have arrived at a preaward lump-sum settlement of a claim which releases the employer from liability and which has been approved by the administrative law judge, any liability on that claim which may later be assigned to the employer is extinguished upon payment of the agreed upon sum; such payment gives rise to an immediate obligation on the part of the Special Fund to commence payment on the portion of the award for which it is liable. Newberg v. Chumley, 824 S.W.2d 413, 1992 Ky. LEXIS 18 ( Ky. 1992 ).

The fact that the Special Fund must commence payment at a date earlier than anticipated does not entitle the employee to receive, during his life expectancy, an amount of benefits greater than that which is authorized by KRS 342.732 ; it merely accelerates the date upon which payment must commence and, as a result, the date upon which payment of the amount of benefits which fall due during the claimant’s life expectancy is complete; if the claimant should live beyond the age of his anticipated life expectancy, payment would, of course, resume for so long as he lives. Newberg v. Chumley, 824 S.W.2d 413, 1992 Ky. LEXIS 18 ( Ky. 1992 ).

38. — — Estoppel.

The doctrine of equitable estoppel did not bind the special fund to any liability to a miner, disabled by silicosis, on the ground that an agent of the miner’s employer, which had not accepted the act, made representation to the miner that it had done so. Yocom v. Jackson, 491 S.W.2d 842, 1973 Ky. LEXIS 610 ( Ky. 1973 ).

39. Effect of Merger.

Former provision of this section deleted by amendment regarding liability for contributions for employee’s claim did not contemplate placing the increased burden on the special fund due to a corporate merger which has no relation to the continuing employment of a claimant with the original corporation and its successor. Island Creek Coal Co. v. Browder, 584 S.W.2d 592, 1978 Ky. App. LEXIS 680 (Ky. Ct. App. 1978).

Where a claimant coal miner contracted pneumoconiosis after 40 years, the fact that the company for which he had worked his first 30 years merged with another in 1965 did not mean that the special fund’s share of the liability should be increased from 40 percent to 75 percent, in accordance with former provision of this section deleted by amendment regarding liability for contributions for employee’s claim, where multiple employers were involved and exact liability could not be ascertained, since the new corporation had assumed the liabilities of the old corporation and the transaction did not affect the day to day operation of the mine. Island Creek Coal Co. v. Browder, 584 S.W.2d 592, 1978 Ky. App. LEXIS 680 (Ky. Ct. App. 1978).

40. Appeal.

Neither the Circuit Court nor the Court of Appeals had authority to overturn the finding of fact made by the Workers’ Compensation Board on the question of whether the employer received notice because the employee did not challenge on appeal whether the record would support this finding; instead, his appeal to the courts simply challenged the authority of the Board to entertain this question in the petition for reconsideration stage and change its opinion. Wells v. Ford, 714 S.W.2d 481, 1986 Ky. LEXIS 325 ( Ky. 1986 ).

Where all compensation awarded was ordered to be paid initially by the employer for the number of weeks proportionate to its liability, and the Special Fund would pay all compensation for the remainder of the compensable period directly to the claimant, and because the coal company was uninsured and did not qualify as self-insured, the Workers’ Compensation Board further provided that the Uninsured Employers’ Fund would become liable only after return of a writ of execution of “no property found,” the court erred in altering the payment method ordered by the Board and mandated by former subdivision (13)(a) of this section. Wells v. Blair, 736 S.W.2d 346, 1987 Ky. App. LEXIS 471 (Ky. Ct. App. 1987).

Since Workers’ Compensation Board’s order, reversing administrative law judge’s award of retraining incentive benefits, allowed the judge to strip the claimant of vested benefits, the order was “final” under CR 54 and immediately appealable. Davis v. Island Creek Coal Co., 969 S.W.2d 712, 1998 Ky. LEXIS 99 ( Ky. 1998 ).

41. Appointment of University Evaluator.

Workers' Compensation Board erred in affirming an award by an administrative law judge (ALJ) of permanent total disability and medical benefits to an employee for bladder cancer allegedly caused by his exposure to a certain chemical compound during his employment because the Workers' Compensation Commissioner failed to refer the employee for a medical examination by a university evaluator as required by both statue and regulation, the ALJ relied solely on the employee's and his physician's testimony for his conclusion that the bladder cancer was caused by a work-related condition, the employee's treating physician, could not serve as an unbiased medical expert, and nothing in the statute permitted an avoidance of the legislative mandate. Tema Isenmann, Inc. v. Miller, 2016 Ky. App. LEXIS 135 (Ky. Ct. App.), sub. op., 2016 Ky. App. Unpub. LEXIS 915 (Ky. Ct. App. Aug. 5, 2016).

Cited:

Reliford v. Eastern Coal Corp., 260 F.2d 447, 1958 U.S. App. LEXIS 5104 (6th Cir. 1958); General Refractories Co. v. Henderson, 313 Ky. 613 , 232 S.W.2d 846, 1950 Ky. LEXIS 910 ( Ky. 1950 ); Deal v. United States Steel Corp., 296 S.W.2d 724, 1956 Ky. LEXIS 228 ( Ky. 1956 ); United States Steel Corp. v. Birchfield, 296 S.W.2d 726, 1956 Ky. LEXIS 229 ( Ky. 1956 ); Pond Creek Colliery v. Taylor, 302 S.W.2d 838, 1957 Ky. LEXIS 218 ( Ky. 1957 ); Inland Steel Co. v. Byrd, 316 S.W.2d 215, 1958 Ky. LEXIS 34 ( Ky. 1958 ); Osborne Mining Corp. v. Barrera, 334 S.W.2d 917, 1960 Ky. LEXIS 239 ( Ky. 1960 ); Osborne Mining Co. v. Davidson, 339 S.W.2d 626, 1960 Ky. LEXIS 474 ( Ky. 1960 ); Webb v. Elkhorn Coal Co., 342 S.W.2d 533, 1960 Ky. LEXIS 97 (Ky. 1960); Blevins v. Johnson, 344 S.W.2d 375, 1961 Ky. LEXIS 219 ( Ky. 1961 ); Blue Diamond Coal Co. v. Phillips, 350 S.W.2d 484, 1961 Ky. LEXIS 105 ( Ky. 1961 ); Lowery v. Blue Diamond Coal Co., 354 S.W.2d 499, 1962 Ky. LEXIS 42 ( Ky. 1962 ); High Splint Coal Co. v. Chandler, 363 S.W.2d 103, 1962 Ky. LEXIS 271 ( Ky. 1962 ); Brock v. International Harvester Co., 374 S.W.2d 507, 1963 Ky. LEXIS 180 ( Ky. 1963 ); Berry v. Owensboro Ice Cream & Dairy Products, 376 S.W.2d 302, 1964 Ky. LEXIS 444 ( Ky. 1964 ); American Radiator & Standard Sanitary Corp. v. Givens, 383 S.W.2d 690, 1964 Ky. LEXIS 58 ( Ky. 1964 ); Kiser v. Bartley Mining Co., 397 S.W.2d 56, 1965 Ky. LEXIS 59 ( Ky. 1965 ); Newsome v. Island Creek Coal Co., 459 S.W.2d 145, 1970 Ky. LEXIS 122 ( Ky. 1970 ); Yocom v. Campbell, 536 S.W.2d 470, 1976 Ky. LEXIS 82 ( Ky. 1976 ); Haycraft v. Corhart Refractories Co., 544 S.W.2d 222, 1976 Ky. LEXIS 19 ( Ky. 1976 ); Wagoner v. Mills, 566 S.W.2d 159, 1977 Ky. App. LEXIS 913 (Ky. Ct. App. 1977); Wells v. Paris, 640 S.W.2d 822, 1982 Ky. LEXIS 309 ( Ky. 1982 ); Pollitt v. Kentucky Unemployment Ins. Com., 635 S.W.2d 485, 1982 Ky. App. LEXIS 223 (Ky. Ct. App. 1982); United States Steel Corp. v. Wells, 650 S.W.2d 264, 1983 Ky. App. LEXIS 287 (Ky. Ct. App. 1983); Pittsburgh & Midway Coal Mining Co. v. Chappel, 714 S.W.2d 485, 1986 Ky. App. LEXIS 1133 (Ky. Ct. App. 1986); Mills v. Blake, 734 S.W.2d 494, 1987 Ky. App. LEXIS 515 (Ky. Ct. App. 1987); Amax Coal Co. v. Smith, 748 S.W.2d 158, 1988 Ky. App. LEXIS 34 (Ky. Ct. App. 1988); Palmore v. France, 783 S.W.2d 398, 1989 Ky. App. LEXIS 167 (Ky. Ct. App. 1989); G & K Dairy v. Princeton Electric Plant Bd., 781 F. Supp. 485, 1991 U.S. Dist. LEXIS 20439 (W.D. Ky. 1991 ); Blackburn v. Lost Creek Mining, 31 S.W.3d 921, 2000 Ky. LEXIS 143 ( Ky. 2000 ); Manalapan Mining Co. v. Lunsford, 204 S.W.3d 601, 2006 Ky. LEXIS 200 ( Ky. 2006 ); Consol of Ky. v. Goodgame, 2015 Ky. LEXIS 1863 (Sept. 24, 2015).

Research References and Practice Aids

Kentucky Bench & Bar.

Schilling, The New Workmen’s Compensation Rules, Vol. 44, No. 1, January 1980, Ky. Bench & Bar 22.

Schabell, Case Development for the Plaintiff in Workers’ Compensation Cases, Vol. 50, No. 2, Spring 1986 Ky. Bench & B. 20.

Jones, Kentucky Workers’ Compensation — Disability or Social Security, Volume 52, No. 4, Fall 1988 Ky. Bench & B. 29.

Jones, Occupational Disease — Six Years Later, Vol. 58, No. 1, Winter 1994, Ky. Bench & Bar 7.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

Devlin, Workplace Injuries: The Ever-Changing Law on Limitations and Repose for Gradual Injury Claims, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 17.

Kentucky Law Journal.

Kentucky’s Answer to “The Coal Black Shame” — A Critical Analysis of Kentucky Workmen’s Compensation Coverage of Black Lung Disease, 59 Ky. L.J. 466 (1970).

Kentucky Law Survey, Patterson, Workmen’s Compensation, 64 Ky. L.J. 307 (1975-76).

Kentucky Law Survey: Cooper, Civil Procedure, 66 Ky. L.J. 531 (1977-1978).

Kentucky Law Survey, Connelly, Torts, 68 Ky. L.J. 709 (1979-1980).

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Murchison, Treating Physicians as Expert Witnesses in Compensation Systems: The Public Health Connection, 90 Ky. L.J. 891 (2001-02).

Northern Kentucky Law Review.

O’Neill, The Limitations of 30 USCS § 902(f)(2)

King, Workers’ Compensation Update 1992-1993, 21 N. Ky. L. Rev. 329 (1994).

Kemp & Kemp, Kentucky Workers’ Compensation Law Update: Issues Facing Employers, Employees, Medical Providers, Insurers and Practitioners as House Bill 1 Continues to Evolve, 26 N. Ky. L. Rev. 67 (1999).

342.317. Coal miners’ pneumoconiosis fund. [Repealed.]

Compiler’s Notes.

This section (Acts 1976, ch. 108, § 1) was repealed by Acts 1980, ch. 104, § 24, effective July 15, 1980.

342.318. Application of provisions of KRS 342.316(4) to certain asbestos-related disease claims.

The provisions of KRS 342.316(4) shall apply to employees’ asbestos-related disease claims filed on or after July 15, 1986.

History. Enact. Acts 1986, ch. 317, § 2, effective July 15, 1986; 1996 (1st Ex. Sess.), ch. 1, § 70, effective December 12, 1996.

NOTES TO DECISIONS

1. Purpose.

This section was intended to serve as a transitional provision so that any live claims as of July 15, 1986, would be governed by the amended version of KRS 342.316(3)(a) (now (4)). William A. Pope Co. v. Howard, 851 S.W.2d 460, 1993 Ky. LEXIS 1 ( Ky. 1993 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Devlin, Workplace Injuries: The Ever-Changing Law on Limitations and Repose for Gradual Injury Claims, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 17.

342.320. Approval of attorney’s and physician’s fees and hospital charges — Limits on attorney’s fees — Payment of attorney fees — Form indicating payment method selected — Award by administrative law judge — Fees for representing employers.

  1. All fees of attorneys and physicians, and all charges of hospitals under this chapter, shall be subject to the approval of an administrative law judge pursuant to the statutes and administrative regulations.
  2. In an original claim, attorney’s fees for services under this chapter on behalf of an employee shall be subject to the following maximum limits:
    1. For attorney-client employment contracts entered into and signed after July 14, 2000, but before July 14, 2018, twenty percent (20%) of the first twenty-five thousand dollars ($25,000) of the award, fifteen percent (15%) of the next ten thousand dollars ($10,000), and five percent (5%) of the remainder of the award, not to exceed a maximum fee of twelve thousand dollars ($12,000). This fee shall be paid by the employee from the proceeds of the award or settlement; and
    2. For attorney-client employment contracts entered into and signed on or after July 14, 2018, twenty percent (20%) of the first twenty-five thousand dollars ($25,000) of the award, fifteen percent (15%) of the next twenty-five thousand dollars ($25,000), and ten percent (10%) of the remainder of the award, not to exceed a maximum fee of eighteen thousand dollars ($18,000). This fee shall be paid by the employee from the proceeds of the award or settlement.
  3. In approving an allowance of attorney’s fees, the administrative law judge shall consider the extent, complexity, and quality of services rendered, and in the case of death, the Remarriage Tables of the Dutch Royal Insurance Institute. An attorney’s fee may be denied or reduced upon proof of solicitation by the attorney. However, this provision shall not be construed to preclude advertising in conformity with standards prescribed by the Kentucky Supreme Court.
  4. No attorney’s fee in any case involving benefits under this chapter shall be paid until the fee is approved by the administrative law judge, and any contract for the payment of attorney’s fees otherwise than as provided in this section shall be void. The motion for approval of an attorney’s fee shall be submitted within thirty (30) days following finality of the claim. Except when the attorney’s fee is to be paid by the employer or carrier, the attorney’s fee shall be paid in one (1) of the following ways:
    1. The employee may pay the attorney’s fee out of his or her personal funds or from the proceeds of a lump-sum settlement; or
    2. The administrative law judge, upon request of the employee, may order the payment of the attorney’s fee in a lump sum directly to the attorney of record and deduct the attorney’s fee from the weekly benefits payable to the employee in equal installments over the duration of the award or until the attorney’s fee has been paid, commuting sufficient sums to pay the fee.
  5. At the commencement of the attorney-client relationship, the attorney shall explain to the employee the methods by which this section provides for the payment of the attorney’s fee, and the employee shall select the method in which the attorney’s fee is to be paid. His or her selection and statement that he or she fully understands the method to be used shall be submitted by his or her attorney, on a notarized form signed by the employee, at the time the motion for approval of the attorney’s fee is submitted. The commissioner shall develop the format and content of the form to be used pursuant to this section. The form to be used shall list on its face all options permitted in this section for the payment of an attorney’s fees and contain an explanation in nontechnical language of each method.
  6. In a claim that has been reopened pursuant to the provisions of this chapter, an attorney’s fee may be awarded by the administrative law judge subject to the limits set forth in subsection (2) of this section. In awarding the attorney’s fee, the administrative law judge shall consider the factors set forth in subsection (3) of this section. If no additional amount is recovered upon reopening, no attorney’s fee shall be awarded. No attorney’s fee shall be allowed or approved exceeding the amounts provided in subsection (2)(a) of this section applicable to any additional amount recovered.
  7. Attorney’s fees for representing employers in proceedings under this chapter pursuant to contract with the employer shall be subject to approval of the administrative law judge in the same manner as prescribed for attorney representation of employees. Employer attorney’s fees are subject to the limitation of eighteen thousand dollars ($18,000) maximum fees except that fees for representing employers shall not be dependent upon the result achieved. Employer attorney’s fees may be paid on a periodic basis while a claim is adjudicated and the payments need not be approved until the claims resolution process is completed. All such approved fees shall be paid by the employer and in no event shall exceed the amount the employer agreed by contract to pay.

HISTORY: 4942: amend. Acts 1952, ch. 182, § 12; 1956, ch. 77, § 13; 1964, ch. 192, § 25; 1970, ch. 16, § 6; 1972, ch. 78, § 30; 1974, ch. 177, § 2; 1987 (Ex. Sess.), ch. 1, § 42, effective January 4, 1988; 1990, ch. 352, § 1, effective July 13, 1990; 1994, ch. 181, Part 8, § 30, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 17, effective December 12, 1996; 2000, ch. 514, § 24, effective July 14, 2000; 2002, ch. 246, § 5, effective July 15, 2002; 2010, ch. 24, § 1817, effective July 15, 2010; 2017 ch. 173, § 6, effective April 10, 2017; 2018 ch. 40, § 10, effective July 14, 2018.

Compiler’s Notes.

Many of the cases annotated below were decided under former provisions of this section.

Pursuant to Acts 1994, ch. 181, § 104, the revised attorney’s fee maximum amount contained in the 1994 amendment to this section shall apply to injuries and occupational diseases occurring on or after April 4, 1994.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Purpose.
  3. Construction.
  4. Fees.
  5. — Basis.
  6. — Effect of 1990 Amendment.
  7. — Effect of 1988 Amendment.
  8. Medical Expenses.
  9. Credit Against Award.
  10. Death of Claimant.
  11. — Determination.
  12. — Adjustment.
  13. — Denial.
  14. — Credit to Employer.
  15. — Fixing.
  16. — — Parties.
  17. — Discount.
  18. Judgment.
  19. Commutation of Future Payments.
  20. Subrogation Rights.
  21. Duration of Award.
  22. Frivolous Motions.
1. Constitutionality.

This section, as amended by Acts 1952, ch. 182, § 12, under which an employer was required to pay one-half (1/2) of the claimant’s attorney’s fee in case of an award by the Workers’ Compensation Board growing out of injury or death of an employee was unconstitutional, as it was not based upon unreasonable delay or willful failure on the part of the employer. Burns v. Shepherd, 264 S.W.2d 685, 1953 Ky. App. LEXIS 141 ( Ky. 1953 ).

Where it was obvious that the provision increasing attorneys’ fees would not have been enacted without provision requiring employers to pay one-half (1/2) of such fees, and the provision relating to payment of fees by employers, was unconstitutional, the whole of former subsection (2) of this section was invalid. Burns v. Shepherd, 264 S.W.2d 685, 1953 Ky. App. LEXIS 141 ( Ky. 1953 ) (decision prior to 1956 amendment).

Former subsection (9) of this section, which authorized non-attorneys in the Department of Workers’ Claims to act as legal representatives in workers’ compensation cases, was unconstitutional as it violated the principle of separation of powers. Turner v. Kentucky Bar Ass'n, 980 S.W.2d 560, 1998 Ky. LEXIS 166 ( Ky. 1998 ).

The 1996 amendment to subdivision (2)(a), which limited the maximum attorney fee for representing an injured worker before an arbitrator to $2,000.00, did not represent an unconstitutional attempt by the Legislature to encroach upon the Supreme Court’s exclusive authority to regulate the practice of law. Daub v. Baker Concrete, 25 S.W.3d 124, 2000 Ky. LEXIS 91 ( Ky. 2000 ).

The 1996 amendment to subdivision (2)(a), which limited the maximum attorney fee for representing an injured worker before an arbitrator to $2,000.00, was not arbitrary and capricious and, therefore, did not violate Sections 2, 14, 19, 28, 29, 109, and 116 of the Kentucky Constitution or Article 1, § 10 of the United States Constitution.Daub v. Baker Concrete, 25 S.W.3d 124, 2000 Ky. LEXIS 91 ( Ky. 2000 ).

The 1996 amendment to former subdivision (2)(c), which required an employer or its carrier to pay up to $5,000.00 of an injured worker’s attorney fees if the employer appealed an award by an arbitrator or administrative law judge and did not prevail, was unconstitutional as it violated procedural due process and was a pure act of arbitrary power that violated section 2 of the Kentucky Constitution. City of Louisville v. Slack, 39 S.W.3d 809, 2001 Ky. LEXIS 54 ( Ky. 2001 ).

Former subsection (2)(c) unfairly distinguished between workers and employers because it required an unsuccessful employer to pay the injured worker’s attorney fee without regard to the reasonableness of the appeal, but imposed no reciprocal penalty upon similarly situated workers. Commonwealth v. Guffey, 42 S.W.3d 618, 2001 Ky. LEXIS 63 ( Ky. 2001 ).

2. Purpose.

The function of this section is to allow the attorney a fee for services performed his client and at the same time not invoke an immediate burden upon the client. Jerry's Drive In, Inc. v. Young, 335 S.W.2d 321, 1960 Ky. LEXIS 247 ( Ky. 1960 ).

The underlying purpose of this section is to accelerate so many of the final payments of an award as are necessary to presently satisfy the full amount of the claimant’s attorney’s fee. A & K Coal Co. v. Blankenship, 708 S.W.2d 638, 1986 Ky. LEXIS 261 ( Ky. 1986 ).

3. Construction.

The word “payable” in this section means such amount as will become due in the future under the award. Warner v. Lexington Roller Mills, Inc., 314 Ky. 1 , 233 S.W.2d 988, 1950 Ky. LEXIS 989 ( Ky. 1 950).

This section provides in effect that the last weekly payments which will become due under the award shall be telescoped to provide a fund sufficient to satisfy the full amount of the attorney’s fee. Warner v. Lexington Roller Mills, Inc., 314 Ky. 1 , 233 S.W.2d 988, 1950 Ky. LEXIS 989 ( Ky. 1 950).

Plain language of Ky. Rev. Stat. Ann. § 342.320 limited an attorney's fee in asserting one injury and one claim to $12,000. Roberts v. Sticklen, 2014 Ky. App. LEXIS 186 (Ky. Ct. App. Dec. 12, 2014), aff'd, 2015 Ky. Unpub. LEXIS 53 (Ky. Aug. 20, 2015).

4. Fees.

Where employer had refused to continue disability payments unless employee signed release form, and there was a reasonable basis for employee to recover penalty allowance under KRS 342.165 , attorney who secured renewal of disability payments and litigated question of penalty allowance was entitled to a reasonable fee. Vanderpool v. Goose Creek Mining Co., 293 Ky. 719 , 170 S.W.2d 32, 1943 Ky. LEXIS 696 ( Ky. 1943 ).

In a workers’ compensation case an attorney is not legally entitled to a fee until that fee has been approved by the Board. Land v. Newsome, 614 S.W.2d 948, 1981 Ky. LEXIS 241 ( Ky. 1981 ).

Where special fund had already paid workers’ compensation claim in full to claimant, it could not recover $5,000 in attorney’s fees which had been approved by the Workers’ Compensation Board, since under this section the attorney’s fee must be paid from the claimant’s funds while held by the special fund and there is no statutory authority for the payment of an attorney’s fee in addition to claimant’s award. Land v. Newsome, 614 S.W.2d 948, 1981 Ky. LEXIS 241 ( Ky. 1981 ).

Where attorney did not move to be awarded attorney’s fees by the Workers’ Compensation Board, he did not have statutory lien under KRS 376.460 for portion of award paid by special fund entirely to claimant, since this section specifically and emphatically requires Board approval of attorney’s fees and cannot approve them on its own motion if attorney fails to move for them. Land v. Newsome, 614 S.W.2d 948, 1981 Ky. LEXIS 241 ( Ky. 1981 ).

Although an attorney’s fee is payable only out of the workers’ compensation benefits awarded to a claimant, the fee is payable out of potential benefits rather than benefits which may actually be paid. Ford Motor Co. v. Stewart, 762 S.W.2d 817, 1988 Ky. App. LEXIS 132 (Ky. Ct. App. 1988).

The established rule is that although a workers’ compensation award does not exceed what the claimant would have received had he not employed an attorney, this is no reason for denying an attorney’s fee. Ford Motor Co. v. Stewart, 762 S.W.2d 817, 1988 Ky. App. LEXIS 132 (Ky. Ct. App. 1988).

There exists no provision for an attorney fee lump-sum payment discount under subdivision (2)(c) (now (4)(b)) of this section. Beale v. Wright, 801 S.W.2d 319, 1990 Ky. LEXIS 149 ( Ky. 1990 ).

Because a worker in a claim for compensation case actually pays his own attorney’s fee, neither the employer nor the Special Fund has standing to question the attorney’s fee absent unusual circumstances. Peabody Coal Co. v. Goforth, 857 S.W.2d 167, 1993 Ky. LEXIS 87 ( Ky. 1993 ).

In reopened cases, the law in effect at the time an agreement for representation is reached limits the amount of fee which the attorney can receive on the reopened claim. Martin v. Louisville Free Pub. Library, 854 S.W.2d 790, 1993 Ky. App. LEXIS 75 (Ky. Ct. App. 1993).

Regardless of whether a fee may be otherwise awarded except for the successful prosecution of the original claim for income benefits (KRS 342.320(2)) (now (4)) or for a reopening in which the worker’s award is increased (KRS 342.320(6)) (now (7)), where an attorney’s fee has been awarded pursuant to KRS 342.310 and where there is an additional underlying issue of whether, absent the application of KRS 342.310 , the award of an attorney’s fee was authorized, the attorney is a necessary party to an appeal concerning whether the application of KRS 342.310 was proper. Peabody Coal Co. v. Goforth, 857 S.W.2d 167, 1993 Ky. LEXIS 87 ( Ky. 1993 ).

Court of Appeals properly affirmed decision of Workers’ Compensation Board that this section authorizes an Administrative Law Judge to limit an attorney fees to a “reasonable” amount where the contractual agreement between the worker and the attorney provides for the maximum fee allowable by law. Combs v. Hubb Coal Corp., 934 S.W.2d 250, 1996 Ky. LEXIS 126 ( Ky. 1996 ).

An attorney who handles separate claims consolidated for procedural purposes is not limited by the statute to a single fee. Lamb v. Fuller, 32 S.W.3d 518, 2000 Ky. App. LEXIS 114 (Ky. Ct. App. 2000).

The 1996 amendment to former subdivision (2)(a), which limited the maximum attorney fee for representing an injured worker before an arbitrator to $2,000.00, was properly applied to a claim which arose before the amendment’s effective date. Daub v. Baker Concrete, 25 S.W.3d 124, 2000 Ky. LEXIS 91 ( Ky. 2000 ).

Although an injured worker named her employer and the Special Fund as defendants, she had only one (1) work-related claim for which the worker’s attorney was awarded the maximum fee from the settlement proceeds with the employer; an administrative law judge properly denied the attorney’s motion for another fee after the matter was resolved against the Special Fund. Curry v. Toyota Motor Mfg. Ky, 91 S.W.3d 557, 2002 Ky. LEXIS 223 ( Ky. 2002 ).

Denial of a request for an attorney’s fee award from an employer in its motion to reopen a worker’s compensation settlement was proper because KRS 342.320 allowed attorney fees only from the employee or from his recovery absent grounds for sanctions; the administrative law judge found that the employer had reasonable grounds for reopening and that ruling was not appealed. Rager v. Crawford & Co., 2007 Ky. App. LEXIS 226 (Ky. Ct. App. July 20, 2007), aff'd, 256 S.W.3d 4, 2008 Ky. LEXIS 156 ( Ky. 2008 ).

Denial of a claim for attorney’s fees by a worker and his attorney in a workers’ compensation case was proper because KRS 342.310 provided the only statutory basis to require the employer to pay the worker’s attorney’s fees, but as the administrative law judge found “reasonable grounds” for the employer’s challenge, the requirements of § 342.310 were not met. Rager v. Crawford & Co., 256 S.W.3d 4, 2008 Ky. LEXIS 156 ( Ky. 2008 ).

Because neither KRS 342.320 nor any other provision in the workers’ compensation laws authorized attorney’s fees for filing a complaint for unfair insurance claims settlement practices under KRS 342.267 , an employee’s motion for such fees was properly denied. Mitchell v. TFE Group, 276 S.W.3d 814, 2009 Ky. LEXIS 3 ( Ky. 2009 ).

Ky. Rev. Stat. Ann. § 342.320(4) and 803 Ky. Admin. Regs. 25:075, § 1, permitted a workers' compensation insurance carrier to reduce a claimant's permanent partial disability benefits to recoup the present day value of the lump sum payment of attorney fees. When the fee was approved, the claimant chose to have her obligation to pay the fee satisfied from her future periodic benefits. Mullins v. Leggett & Platt, 2016 Ky. App. LEXIS 105 (Ky. Ct. App. June 17, 2016), aff'd, 513 S.W.3d 337, 2017 Ky. LEXIS 69 ( Ky. 2017 ).

Workers' Compensation Board and the appellate court correctly determined that the plain text of Ky. Rev. Stat. Ann. § 342.320 clearly includes the ability to deduct present-value discounts for lump-sum payments effectuated by discounting future benefits. Appellant, who objected to the calculation of her weekly benefits remaining after deduction of the attorney's fee payment, failed to establish that her employer's insurance carrier acted contrary to law or failed to reduce correctly her weekly benefits. Mullins v. Leggett & Plait, 513 S.W.3d 337, 2017 Ky. LEXIS 69 ( Ky. 2017 ).

5. — Basis.

The amount of an attorney fee must be based upon the amount of benefits that the worker is entitled to receive at the time the fee is awarded; the award of an attorney fee before the worker is entitled to receive any benefits is premature. Baker v. Shamrock Coal Co., 985 S.W.2d 755, 1999 Ky. LEXIS 12 ( Ky. 1999 ).

Since the fees payable to a claimant’s attorney were to be deducted from the award under KRS 342.320(2)(a), and under KRS 342.732(1)(a), the claimant could not receive retraining incentive benefits until he was enrolled as a student, his attorney’s motion for fees was premature under both KRS 342.320(2)(a) and 803 KAR.25:125. Howard v. Peabody Coal Co., 185 S.W.3d 165, 2006 Ky. LEXIS 48 ( Ky. 2006 ).

Workers' Compensation Board did not err in concluding that an attorney was entitled to one $12,000 fee under Ky. Rev. Stat. Ann. § 342.320 where although the settlement of the case benefitted five of decedent's family members, the settlement and resulting benefits nonetheless stemmed from one claim for the effects of one work-related incident. Roberts v. Sticklen, 2014 Ky. App. LEXIS 186 (Ky. Ct. App. Dec. 12, 2014), aff'd, 2015 Ky. Unpub. LEXIS 53 (Ky. Aug. 20, 2015).

6. — Effect of 1990 Amendment.

The 1990 amendment to this section, which removed the $6,500 cap on attorney’s fees for workers’ compensation cases, does not apply retrospectively to awards of attorney’s fees relative to injuries which occurred before its effective date. Hamilton v. Desparado Fuels, 868 S.W.2d 95, 1993 Ky. LEXIS 177 ( Ky. 1993 ).

The 1990 amendment to subdivision (6)(b) of this section was not remedial; therefore, it applies only to attorney fees for the reopening of claims that arose after its effective date. Napier v. Scotia Coal Co., 874 S.W.2d 377, 1993 Ky. LEXIS 178 ( Ky. 1993 ).

Where injury occurred after the 1988 amendment to the section became effective and such amendment was remedial, it applies to the initial claim as well as to the reopening of that claim and not the 1990 amendment which became effective after the initial claim, thus attorneys fees were limited as provided by the 1988 amendment. Dotson v. Southern Hills Coal Co., 896 S.W.2d 610, 1995 Ky. LEXIS 53 ( Ky. 1995 ).

7. — Effect of 1988 Amendment.

The 1988 amendment to subdivision (6)(b) of this section was remedial; therefore, it applies not only to prospective claims that arose after its effective date, but also retrospectively, to the extent that it applies to those claims that arose before its effective date in which the representation on a motion to reopen was undertaken on or after its effective date. Napier v. Scotia Coal Co., 874 S.W.2d 377, 1993 Ky. LEXIS 178 ( Ky. 1993 ).

8. Medical Expenses.

Only the Workers’ Compensation Board has jurisdiction to determine the reasonableness of medical expenses. Hale v. Nugent Sand Co., 657 S.W.2d 246, 1983 Ky. App. LEXIS 320 (Ky. Ct. App. 1983).

The statute permits an award of attorney fees in connection with an award of medical fees. Duff Truck Lines v. Vezolles, 999 S.W.2d 224, 1999 Ky. App. LEXIS 103 (Ky. Ct. App. 1999).

9. Credit Against Award.

Even though a credit against workers’ compensation may be allowed because of the payment to the claimant of benefits other than workers’ compensation, this credit may not be applied in such a way as to defeat the attorney’s right to a fee or the claimant’s right to have it paid from his workers’ compensation award and not from his own pocket. Ford Motor Co. v. Stewart, 762 S.W.2d 817, 1988 Ky. App. LEXIS 132 (Ky. Ct. App. 1988).

10. Death of Claimant.

The right to the attorney’s fee vested when the compensation payment was awarded and the subsequent death of the claimant before the termination of the payments did not impair the right of the attorney to the payment of his fee out of the total award. Elkhorn Stone Co. v. Webb, 478 S.W.2d 720, 1972 Ky. LEXIS 339 ( Ky. 1972 ).

11. — Determination.

The determination of the amount of the attorney fee is not a substantive matter but is done pursuant to the contractual liability to pay a fee for services rendered. Rye v. Conkwright, 311 S.W.2d 796, 1958 Ky. LEXIS 214 ( Ky. 1958 ).

12. — Adjustment.

The Board may, in the exercise of sound discretion and after a careful consideration and understanding of the facts and circumstances, reduce the contract fee to be paid an attorney, although it does not exceed the statutory amount and there is no evidence that the employment was solicited. Rawlings v. Workemn's Compensation Board, 187 Ky. 308 , 218 S.W. 985, 1920 Ky. LEXIS 118 ( Ky. 1920 ).

While the board may limit an attorney’s compensation, notwithstanding his contract, to a reasonable amount, considering the time and effort involved and the result achieved, it may not reduce such reasonable fee as so determined or deny compensation altogether except as a penalty for solicitation. Vanderpool v. Goose Creek Mining Co., 293 Ky. 719 , 170 S.W.2d 32, 1943 Ky. LEXIS 696 ( Ky. 1943 ).

13. — Denial.

The mere fact that the ultimate award did not exceed what the employee would probably have received had he not employed an attorney is not grounds for denying an attorney fee. Vanderpool v. Goose Creek Mining Co., 293 Ky. 719 , 170 S.W.2d 32, 1943 Ky. LEXIS 696 ( Ky. 1943 ).

14. — Credit to Employer.

Employer was entitled to credit on compensation award for lump-sum allowance to attorney of employee’s widow, even though by reason of widow’s remarriage her right to payments ceased and the attorney thus received a larger part of the amount paid than his contract called for. W. M. Ritter Lumber Co. v. Begley, 288 Ky. 481 , 156 S.W.2d 501, 1941 Ky. LEXIS 134 ( Ky. 1941 ).

15. — Fixing.

Where case was still pending before board and where no petition for review had been filed, board had authority to fix attorney’s fee and commute payments sufficient to pay such fee. Holt Bros. Min. Co. v. Fisher, 255 Ky. 418 , 74 S.W.2d 469, 1934 Ky. LEXIS 248 ( Ky. 1934 ).

16. — — Parties.

The employee and the attorney are the only parties who may object to the amount of a fee fixed by the board. Commonwealth, Dep't of Highways v. Combs, 357 S.W.2d 316, 1962 Ky. LEXIS 117 ( Ky. 1962 ).

17. — Discount.

Where award was payable to claimant over 425 weeks and attorney’s fee was commuted from final payments thereof, a discount of 5% per annum of the amount of the attorney fee was authorized and could be deducted from final payments notwithstanding it exceeded 20% of the award. Hicks v. General Refractories Co., 405 S.W.2d 734, 1966 Ky. LEXIS 264 ( Ky. 1966 ).

18. Judgment.

The entry of a judgment for attorney’s fees pursuant to an order of the Workers’ Compensation Board, against the employer’s contention that a new method of paying the fee had been agreed upon, involves judicial discretion and cannot be controlled by mandamus. McFarland v. Gilbert, 276 Ky. 423 , 124 S.W.2d 473, 1939 Ky. LEXIS 529 ( Ky. 1939 ).

19. Commutation of Future Payments.

Commutation of future payments to pay a claimant’s attorney’s fee is not an exercise of arbitrary power and the procedure does not violate Ky. Const., § 2, nor does it deprive the employers or the special fund of property without due process of law as guaranteed by the Fourteenth Amendment, because when the claimant petitions the Board to approve the attorney’s fee and to commute his final payment to a lump sum to pay this obligation, the end point of the indefinite award is fixed by life expectancy on the date of injury and the requisite payment may be commuted. Livingston County Farm Supply, Inc. v. Spencer, 593 S.W.2d 76, 1979 Ky. LEXIS 319 ( Ky. 1979 ).

Future benefits payable pursuant to a workmen’s compensation award to continue during disability may be commuted to a lump sum for the purpose of the payment of the fee of the attorney for the claimant or other benefit of the claimant without violating either the United States or Kentucky Constitutions. Livingston County Farm Supply, Inc. v. Spencer, 593 S.W.2d 76, 1979 Ky. LEXIS 319 ( Ky. 1979 ).

Lump-sum payments for the benefit of the claimant may be commuted from his life expectancy if attorneys’ fees have not been commuted, or from that portion of his life expectancy remaining after commutation if attorneys’ fees have been commuted. Livingston County Farm Supply, Inc. v. Spencer, 593 S.W.2d 76, 1979 Ky. LEXIS 319 ( Ky. 1979 ).

The attorney’s fee commuted from the final payments of compensation payable from the award is the joint responsibility of the Special Fund and the employer, and they should pay a portion of the fee in relation to their respective responsibility for the employee’s disability; the mechanism for crediting the respective parties for payment of attorney’s fees and maintaining continuity of payment to the claimant shall be made pursuant to 803 KAR 25:070. A & K Coal Co. v. Blankenship, 708 S.W.2d 638, 1986 Ky. LEXIS 261 ( Ky. 1986 ).

20. Subrogation Rights.

Employer who was subrogated to payments that employee had received from tort-feasor in products liability case was entitled to credit not only against future payments to employee but also for amounts previously paid to employee; however, employer was not entitled to front-end credit for payment of the employee’s attorney’s fees. Mastin v. Liberal Markets, 674 S.W.2d 7, 1984 Ky. LEXIS 262 ( Ky. 1984 ).

Employer, insurance carrier and special fund were subrogated to amount employee recovered in products liability action; subrogation rights are statutory and limited to what the statute provides; thus, employer was not entitled to a front-end credit for their payment of the employee’s attorney’s fees. For the same reason, employer’s statutory rights of subrogation cannot attach to that portion of employee’s recovery from the third-party tort-feasor expressly excluded from such subrogation by the statutory phrase, “less the employee’s legal fees and expense” in effecting recovery from the third-party tort-feasor; also employee was also entitled to deduct a share of her legitimate expenses incurred in connection with effecting the recovery in the products liability case in such proportion as the elements of her settlement subject to statutory subrogation bear to the elements of her settlement not subject to statutory subrogation. Mastin v. Liberal Markets, 674 S.W.2d 7, 1984 Ky. LEXIS 262 ( Ky. 1984 ).

21. Duration of Award.

Allowing determination of lump-sum settlements, widow or dependent benefits, and attorney fees based on actuarial tables in no way affects the duration of an award where a lump sum settlement, widow or dependent benefits, or attorney fees is not sought, and compensation payments have to be continued even after the claimant outlives the period calculated for the commutation of his attorney’s fee. Stovall v. Williams, 675 S.W.2d 6, 1984 Ky. App. LEXIS 570 (Ky. Ct. App. 1984).

Determining the amount of attorney fees according to actuarial tables affects only the sum of attorney fees and not the aggregate of the award. To hold otherwise would effect the claimant’s receiving a lump sum settlement when he seeks attorney fees without the claimant’s receiving the money in lump sum; moreover, the claimant’s receipt of these benefits would remain contingent upon his living his life expectancy. Such a result would be inconsistent with the Workers' Compensation Act. Stovall v. Williams, 675 S.W.2d 6, 1984 Ky. App. LEXIS 570 (Ky. Ct. App. 1984).

In determining a claimant’s life expectancy for purposes of a 1978 award of benefits, the trial court properly applied the Life Expectancy and Annuity Table, rather than the American Experience Table of Mortality referenced in this section at the time benefits were awarded. Palmore v. Swiney, 807 S.W.2d 950, 1990 Ky. App. LEXIS 145 (Ky. Ct. App. 1990).

22. Frivolous Motions.

Reference in KRS 342.125(3) to the original award or order granting or denying benefits refers to the original award and any subsequent order granting or denying benefits; a premature motion to reopen is barred by KRS 342.320 and KRS 342.310 , and CR 11, which deter frivolous motions. Hall v. Hospitality Res., Inc., 276 S.W.3d 775, 2008 Ky. LEXIS 288 ( Ky. 2008 ).

Cited in:

Pope v. Fayette Jellico Coal Co., 301 Ky. 353 , 192 S.W.2d 103, 1946 Ky. LEXIS 485 ( Ky. 1946 ); Vestal Lumber Co. v. Clark, 268 S.W.2d 954, 1954 Ky. LEXIS 942 ( Ky. 1954 ); In re Whittle, 288 S.W.2d 337, 1956 Ky. LEXIS 249 ( Ky. 1956 ); Citation Coal Co. v. Lewis, 365 S.W.2d 730, 1963 Ky. LEXIS 223 ( Ky. 1963 ); Fugate v. United States Steel Corp., 528 S.W.2d 691, 1975 Ky. LEXIS 75 ( Ky. 1975 ); Brown Badgett, Inc. v. Calloway, 675 S.W.2d 389, 1984 Ky. LEXIS 251 ( Ky. 1984 ); Stovall v. Great Flame Coal Co., 684 S.W.2d 3, 1984 Ky. App. LEXIS 506 (Ky. Ct. App. 1984); Ashlock v. Commonwealth, — S.W.3d —, 2014 Ky. App. LEXIS 52 (Ky. Ct. App. 2014).

Opinions of Attorney General.

The right to an attorney fee and the amount thereof can only be granted after an award, thus the law dealing with attorney fees in effect on that date determines the nature and amount of the attorney fee. OAG 74-642 .

Worker’s compensation limits the attorney’s fees to a maximum amount for each award and additional work performed, although not contemplated in the original fee, may not be compensated if the maximum fee has been allowed. OAG 76-114 .

If there were to be no break in the payment to the employee and the attorney fees and discount were not deducted from the period of his life expectancy, then the attorney fees would be paid not out of the award but in addition to the award; this was not the intention of this section in section in authorizing lump-sum payments of attorney fees and would, in effect, increase an award beyond the maximum allowable by KRS 342.730 ; therefore, the attorney fees would have to be based on a percentage of some fixed amount and that fixed amount is the mortality rate of the person and his life expectancy at the date of his injury or last exposure. OAG 78-672 .

The payment of the attorney fees is a partial lump sum for a particular purpose; therefore, it would have to be commuted in the same fashion as any other partial or total lump sum. OAG 78-672 .

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Attorneys’ Fees Recoverable in Kentucky Litigation, Vol. 44, No. 4, October 1980, Ky. Bench & Bar 28.

Schabell, Case Development for the Plaintiff in Workers’ Compensation Cases, Vol. 50, No. 2, Spring 1986 Ky. Bench & B. 20.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

Schabell, 1994 Workers’ Compensation Changes — A Plaintiff’s Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 17.

Pearlman, Workplace Injuries: Medical Benefits, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 27.

Kentucky Law Journal.

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Northern Kentucky Law Review.

Notes, University of Louisville v. O’Bannon: Retroactive Application of Board of Claims Act Amendments, 18 N. Ky. L. Rev. 121 (1990).

Kemp & Kemp, Kentucky Workers’ Compensation Law Update: Issues Facing Employers, Employees, Medical Providers, Insurers and Practitioners as House Bill 1 Continues to Evolve, 26 N. Ky. L. Rev. 67 (1999).

ALR

Attorney’s fee or other expenses of litigation incurred by employee in action against third-party tortfeasor as charge against employer’s distributive share. 74 A.L.R.3d 854.

342.325. Questions not settled by agreement of parties determined by administrative law judge.

All questions arising under this chapter, if not settled by agreement of the parties interested therein, with the approval of the administrative law judge, shall be determined by the administrative law judge except as otherwise provided in this chapter.

History. 4943: amend. Acts 1987 (Ex. Sess.), ch. 1, § 43, effective January 4, 1988; 1996 (1st Ex. Sess.), ch. 1, §§ 18, 63, effective December 12, 1996; 2000, ch. 514, § 25, effective July 14, 2000.

NOTES TO DECISIONS

  1. Jurisdiction of Board.
  2. Jurisdiction of Administrative Law Judge.
  3. Declaratory Judgment.
  4. Exception of KRS 342.610(4).
1. Jurisdiction of Board.

Compensation board has original jurisdiction of all questions arising under this chapter, and approval of the court is not necessary to validate an award unless there is a petition for review. Ashland Iron & Mining Co. v. McDaniel's Dependents, 202 Ky. 19 , 258 S.W. 943, 1924 Ky. LEXIS 663 ( Ky. 19 24).

The Workers’ Compensation Board does not have jurisdiction to settle questions of cost expended by insurer of employer in proceedings at common law. Beattyville Co. v. Sizemore, 203 Ky. 7 , 261 S.W. 620, 1924 Ky. LEXIS 834 ( Ky. 1924 ).

Workers’ Compensation Board had authority to determine whether insurer had issued a policy covering the employer where the claimant joined the carrier as a defendant. Lawrence Coal Co. v. Boggs, 309 Ky. 646 , 218 S.W.2d 670, 1949 Ky. LEXIS 781 ( Ky. 1949 ).

Where a workers’ compensation claimant brought an action in the Circuit Court alleging the employer’s failure to pay a reasonable medical bill, the Circuit Court erred in not dismissing the proceeding for want of jurisdiction, because exclusive jurisdiction over the issue lay with the Workers' Compensation Board. Brown Badgett, Inc. v. Calloway, 675 S.W.2d 389, 1984 Ky. LEXIS 251 ( Ky. 1984 ).

Questions concerning an insurer’s duty to defend an employer, whether it breached that duty, and the damages to which the employer was entitled, if any, were not questions “arising under” the chapter and, therefore the Workers’ Compensation Board did not have jurisdiction under the statute. Wolfe v. Fidelity & Cas. Ins. Co., 979 S.W.2d 118, 1998 Ky. App. LEXIS 61 (Ky. Ct. App. 1998).

A dispute between an employer’s two (2) insurance companies concerning reimbursement of a workers’ compensation benefit already paid by one insurer to a claimant does not arise under Chapter 342 and, therefore, the Workers’ Compensation Board lacks jurisdiction to order such a reimbursement. Sam Oxley & Co. v. Aldridge, 2000 Ky. App. LEXIS 142 (Ky. Ct. App. Nov. 22, 2000).

The Workers’ Compensation Board did not have jurisdiction to resolve a dispute concerning reimbursement between insurers because the question was purely between two (2) insurers and did not involve the rights of the injured employee. Custard Ins. Adjusters, Inc. v. Aldridge, 57 S.W.3d 284, 2001 Ky. LEXIS 152 ( Ky. 2001 ).

Trial court had subject matter jurisdiction to approve a petition that allowed transfer of settlement agreement funds owed to the employee to the third-party. While KRS 342.325 and KRS 342.690(1) conferred exclusive jurisdiction of claims filed pursuant to its provisions with the Board, the third-party’s petition did not request that any matter relating to a workers’ compensation claim be litigated, but, instead, asked that its petition pursuant to the Structured Settlement Protection Act be approved. Ky. Employers' Mut. Ins. v. Novation Capital, LLC, 361 S.W.3d 320, 2011 Ky. App. LEXIS 260 (Ky. Ct. App. 2011), overruled in part, Am. Gen. Life Ins. Co. v. DRB Capital, LLC, 562 S.W.3d 916, 2018 Ky. LEXIS 535 ( Ky. 2018 ).

2. Jurisdiction of Administrative Law Judge.

An administrative law judge has jurisdiction to determine credit for subrogation. Whittaker v. Hardin, 32 S.W.3d 497, 2000 Ky. LEXIS 98 ( Ky. 2000 ).

The Administrative Law Judge did not have jurisdiction to resolve a dispute concerning reimbursement between insurers because the question was purely between two (2) insurers and did not involve the rights of the injured employee. Custard Ins. Adjusters, Inc. v. Aldridge, 57 S.W.3d 284, 2001 Ky. LEXIS 152 ( Ky. 2001 ).

Administrative law judge had jurisdiction and a statutory mandate under KRS 342.325 and KRS 342.700 to review a settlement agreement reached between an employee and his employer to determine how much reimbursement, if any, was due the employer relative to a compensation subrogation lien. Greene v. Paschall Truck Lines, 239 S.W.3d 94, 2007 Ky. App. LEXIS 416 (Ky. Ct. App. 2007).

3. Declaratory Judgment.

The federal District Court would not take jurisdiction in a declaratory judgment action wherein an insurer under workers’ compensation law sought a declaration of rights as to its liability to employees of a corporation, which it had insured as a partnership, where such declaration would affect not only the legal rights of the insurer and employer but also the rights of the employees. Coal Operators Casualty Co. v. Abshire, 111 F. Supp. 24, 1953 U.S. Dist. LEXIS 2890 (D. Ky. 1953 ).

4. Exception of KRS 342.610(4).

There is nothing about the determination of “deliberate intent” that is so peculiar to workers’ compensation law that a circuit judge or jury could not decide the issue. KRS 342.610 provides an exception to this section, and clearly allows for a choice to either take under the act or to sue in a civil proceeding. The argument that the estate may try to collect under the act if their civil suit should fail is totally without merit. KRS 342.610 plainly sets forth the loss of a right to collect under the act if one would continue with the civil lawsuit. Zurich Am. Ins. Co. v. Brierly, 936 S.W.2d 561, 1996 Ky. LEXIS 95 ( Ky. 1996 ).

Cited:

Hale v. Nugent Sand Co., 657 S.W.2d 246, 1983 Ky. App. LEXIS 320 (Ky. Ct. App. 1983); Zurich Ins. Co. v. Mitchell, 712 S.W.2d 340, 1986 Ky. LEXIS 275 ( Ky. 1986 ).

Research References and Practice Aids

Kentucky Law Journal.

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

342.329. Division of Ombudsman and Workers’ Compensation Specialist Services — Functions — Ombudsman program — Toll-free telephone access.

  1. The Division of Ombudsman and Workers’ Compensation Specialist Services shall be headed by a director appointed by the commissioner with the approval of the Governor, in accordance with KRS 12.050 and 342.230 . The functions of the division shall include:
    1. Serving as an information source for employees, employers, medical, vocational, and rehabilitation personnel, carriers, and self-insurers;
    2. Responding to inquiries and complaints relative to the workers’ compensation program;
    3. Advising all parties of their rights and obligations under this chapter;
    4. Assisting workers in obtaining medical reports, job descriptions, and other materials pertinent to a claim for benefits and preparing all documents necessary for a claim application; and
    5. Performing other duties as required by the commissioner through administrative regulations promulgated by the commissioner.
  2. The employee, employer, carrier, self-insured administrator, and medical provider shall promptly comply with reasonable information requests from an ombudsman.
  3. The ombudsman program shall be staffed with personnel trained in techniques performed by ombudsmen and who are familiar with medical and vocational rehabilitation principles and knowledgeable about the provisions of this chapter and applicable administrative regulations.
  4. A toll-free telephone number shall be provided throughout the Commonwealth to insure easy access by all parties to the division.

History. Enact. Acts 1994, ch. 181, Part 2, § 7, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 71, effective December 12, 1996; 2010, ch. 24, § 1818, effective July 15, 2010.

NOTES TO DECISIONS

1. Who May Process Claims.

Workers’ compensation specialists who are not attorneys may process claims, as long as their work is supervised by a licensed attorney; however, such specialists may not represent parties before any adjudicative tribunal. Turner v. Kentucky Bar Ass'n, 980 S.W.2d 560, 1998 Ky. LEXIS 166 ( Ky. 1998 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Kemp & Kemp, Kentucky Workers’ Compensation Law Update: Issues Facing Employers, Employees, Medical Providers, Insurers and Practitioners as House Bill 1 Continues to Evolve, 26 N. Ky. L. Rev. 67 (1999).

342.330. Employer’s record of injuries. [Repealed.]

Compiler’s Notes.

This section (4944) was repealed by Acts 1976, ch. 160, § 12.

342.335. Fraud and misrepresentation in filing or delaying the filing of claims and in receiving or providing services or benefits — Penalties.

  1. No person shall knowingly file, or permit to be filed, any false or fraudulent claim on his or her behalf to compensation or other benefits under this chapter, or by fraud, deceit, or misrepresentation procure or cause to be made or receive any payments of compensation or other benefits under this chapter to which the recipient is not lawfully entitled, or conspire with, aid, or abet another so to do. No person shall by deceit or misrepresentation or with intent to defraud cause or procure or conspire with, aid or abet another in so causing or procuring any person entitled to compensation or other benefits under this chapter to delay or omit to claim title thereto or to accept the payment of a less sum than that to which he or she may be lawfully entitled thereunder.
  2. Any person, as that term is defined in KRS 342.0011 , who knowingly, as defined in KRS 501.020 , makes any false representation, including misrepresentations of hazards, classifications, payrolls, or other facts by an employer or its agent that are designed to cause a reduction in the employer’s premium, for the purpose of or in the course of receiving or providing any service or benefit available under this chapter, shall be subject to the civil fines imposed pursuant to KRS 342.990 for a violation of this subsection. In addition, if a person who violates the provisions of this subsection is also dependent upon a professional license to provide any service or benefit under this chapter, the commissioner shall refer the matter to the appropriate licensing body and recommend revocation of that person’s license to work at his or her profession in the Commonwealth of Kentucky.

History. 4945; 1994, ch. 181, Part 13, § 63, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 19, effective December 12, 1996; 2010, ch. 24, § 1819, effective July 15, 2010.

NOTES TO DECISIONS

1. Action for Retaliatory Discharge.

Implicit in this section and KRS 342.295 , and in the Workers’ Compensation Act as a whole, is a public policy that an employee has a right to be free to assert a lawful claim for benefits without suffering retaliatory discharge. Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 1983 Ky. LEXIS 305 ( Ky. 1983 ), limited, Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 1995 Ky. LEXIS 48 ( Ky. 1995 ), limited, Maiden v. Clark Invs., 1995 Ky. App. LEXIS 179 (Ky. Ct. App. Oct. 20, 1995).

A complaint seeking damages for wrongful discharge because an employee was terminated for pursuing a claim under KRS Chapter 342 for workers’ compensation states a cause of action. Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 1983 Ky. LEXIS 305 ( Ky. 1983 ), limited, Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 1995 Ky. LEXIS 48 ( Ky. 1995 ), limited, Maiden v. Clark Invs., 1995 Ky. App. LEXIS 179 (Ky. Ct. App. Oct. 20, 1995).

It is an important public interest that injured employees shall receive, and employers shall be obligated to pay, for medical expenses, rehabilitative services and a portion of lost wages, and, therefore, action on the part of an employer which prevents an employee from asserting his statutory right to medical treatment and compensation violates that policy; the only effective way to prevent an employer from interfering with his employees’ rights to seek compensation is to recognize that the latter has a cause of action for retaliatory discharge when the discharge is motivated by the desire to punish the employee for seeking the benefits to which he is entitled by law. Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 1983 Ky. LEXIS 305 ( Ky. 1983 ), limited, Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 1995 Ky. LEXIS 48 ( Ky. 1995 ), limited, Maiden v. Clark Invs., 1995 Ky. App. LEXIS 179 (Ky. Ct. App. Oct. 20, 1995).

Cited:

Lynch v. Lear Seating Corp., — F. Supp. 2d —, 2002 U.S. Dist. LEXIS 13452 (W.D. Ky. 2002 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Notes, Nelson Steel Corp. v. McDaniel: DiscriminationAgainst Employees Who Have Filed Workers’ Compensation Claims Against PreviousEmployers, 23 N. Ky. L. Rev. 435 (1996).

342.340. Employer to insure or provide security against liability to workers.

  1. Every employer under this chapter shall:
    1. Insure and keep insured its liability for compensation in some corporation, association, or organization authorized to transact the business of workers’ compensation insurance in this state; or
    2. Furnish to the commissioner satisfactory proof of its financial ability to pay directly the compensation in the amount and manner and when due as provided in this chapter. In this case, the commissioner shall require the deposit of an acceptable security, indemnity, or bond to secure, to the extent the commissioner directs, the payment of compensation liabilities as they are incurred. A public sector self-insured employer shall not be required to deposit funds as security, indemnity, or bond to secure the payment of liabilities under this chapter, if the public employer has authority to raise taxes, notwithstanding provisions of KRS 68.245 , 132.023 , 132.027 , and 160.470 relating to recall and reconsideration of local taxes; raise tuition; issue bonds; raise fees or fares for services provided; or has other authority to generate funds for its operation.
  2. Every employer subject to this chapter shall file, or have filed on its behalf, with the department, as often as may be necessary, evidence of its compliance with the provisions of this section and all others relating hereto. Any insurance carrier or self-insured group providing workers’ compensation insurance coverage for a Kentucky location shall file on behalf of the employer, with the commissioner, evidence of the employer’s compliance with this chapter. Evidence of compliance filed with the department may include a named additional insured who has been provided proof of workers’ compensation insurance coverage by the employer. The filing shall be made within ten (10) days after the issuance of a policy, endorsement to a policy, or similar documentation of coverage. Every employer who has complied with the foregoing provision and has subsequently canceled its insurance or its membership in an approved self-insured group, as the case may be, shall immediately notify, or have notice given on its behalf to the department of the cancellation, the date, and the reasons; and every insurance carrier or self-insured group shall in like manner notify the commissioner upon the cancellation, lapse, termination, expiration by reason of termination of policy period, or nonrenewal of any policy issued by it or termination of any membership agreement, whichever is applicable under the provisions of this chapter, except that the carrier or self-insured group need not set forth its reasons unless requested by the commissioner. The above filings are to be made on the forms prescribed by the commissioner. Termination of any policy of insurance issued under the provisions of this chapter shall take effect no greater than ten (10) days prior to the receipt of the notification by the commissioner unless the employer has obtained other insurance and the commissioner is notified of that fact by the insurer assuming the risk. Upon determination that any employer under this chapter has failed to comply with these provisions, the commissioner shall promptly notify interested government agencies of this failure and, with particular reference to employers engaged in coal mining, the commissioner shall promptly report any failures to the Department for Natural Resources so that appropriate action may be undertaken pursuant to KRS 351.175 .

History. 4946: amend. Acts 1970, ch. 16, § 4; 1982, ch. 426, § 2, effective July 15, 1982; 1990, ch. 16, § 1, effective July 13, 1990; 1994, ch. 181, Part 11, § 36, effective April 4, 1994; 2005, ch. 7, § 41, effective March 1, 2005; 2007, ch. 93, § 1, effective March 23, 2007; 2008, ch. 38, § 1, effective July 15, 2008; 2010, ch. 24, § 1820, effective July 15, 2010; 2014, ch. 80, § 3, effective July 15, 2014.

NOTES TO DECISIONS

Analysis

  1. In General.
  2. Coverage.
  3. Applicability of KRS 342.760 .
  4. Notice of Cancellation.
1. In General.

While the words “secure payment of compensation as provided by this chapter” appearing in KRS 342.760 and 342.690 obviously refer to the providing of insurance or security as required by KRS 342.340 , the obligation to so provide is not conditioned on any election by an employer but is automatically imposed on all employers mandatorily made subject to the act by this section, and accordingly, if a subject employer simply ignores the act, in every respect he fails to secure the payment of compensation the same as an employer who has publicly proclaimed his intent to be under the act but who has not provided insurance or security. Davis v. Turner, 519 S.W.2d 820, 1975 Ky. LEXIS 178 ( Ky. 1975 ).

KRS 342.340(1), 342.365 , and 342.375 require employers to be fully covered by their insurance carriers to ensure adequate compensation for employees and to prevent employers’ funds from depletion before adequate compensation is recovered. AIG/AIU Ins. Co. v. S. Akers Mining Co., 2004 Ky. App. LEXIS 338 (Ky. Ct. App. Nov. 24, 2004), aff'd, 192 S.W.3d 687, 2006 Ky. LEXIS 8 ( Ky. 2006 ).

Employer’s workers’ compensation insurance carrier was liable for any increase in benefits under KRS 342.165(1) despite a contractual term to the contrary since the legislature has determined that an employer’s entire liability for benefits must be secured as a matter of public policy under KRS 342.340 , 342.365 , and 342.375 . AIG/AIU Ins. Co. v. South Akers Mining Co., LLC, 192 S.W.3d 687, 2006 Ky. LEXIS 8 ( Ky. 2006 ).

2. Coverage.

Where employer had executed forms required under this section for accepting provisions of the compensation law and insuring his liability thereunder and had lodged them with his insurance carrier with the express understanding that it would file same with compensation board but insurer negligently failed to do so, insurer was estopped to claim that employer was not operating under the law because, at time of employee’s death, such forms had not been filed. Ramey v. Broady, 209 Ky. 279 , 272 S.W. 740, 1925 Ky. LEXIS 482 ( Ky. 1925 ).

A policy of insurance taken out by employer under this section to cover his liability for compensation to employees, listing his business as that of “junk dealer,” did not cover claims of employees injured in wrecking a building. Kelly v. Nussbaum, 218 Ky. 330 , 291 S.W. 754, 1926 Ky. LEXIS 120 ( Ky. 1926 ).

3. Applicability of KRS 342.760.

KRS 342.760 does not apply when an employer has satisfied this section by providing a workers’ compensation insurance policy or by being certified by the board as a qualified, self-insured employer. Whitehead v. Davis, 692 S.W.2d 801, 1985 Ky. LEXIS 242 ( Ky. 1985 ).

4. Notice of Cancellation.

Workers’ compensation insurance policy, which lapsed by its own terms prior to the date of the worker’s injury, was still in full force and effect on the date of the injury because insurer failed to comply with its duty to provide notice of cancellation as required by subsection (2) of this section. Travelers Ins. Co. v. Duvall, 884 S.W.2d 665, 1994 Ky. LEXIS 96 ( Ky. 1994 ).

Cited in:

Lawrence Coal Co. v. Boggs, 309 Ky. 646 , 218 S.W.2d 670, 1949 Ky. LEXIS 781 ( Ky. 1949 ); Old Republic Ins. Co. v. Begley, 314 S.W.2d 552, 1958 Ky. LEXIS 309 ( Ky. 1958 ); Young v. Baldwin, 456 S.W.2d 44, 1970 Ky. LEXIS 22 2 ( Ky. 1970 ); Davis v. Comer, 532 S.W.2d 12, 1975 Ky. LEXIS 22 ( Ky. 1975 ); Beth-Elkhorn Corp. v. Ross, 552 S.W.2d 656, 1977 Ky. LEXIS 469 ( Ky. 1977 ); Lynch v. Lear Seating Corp., — F. Supp. 2d —, 2002 U.S. Dist. LEXIS 13452 (W.D. Ky. 2002 ); Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 2003 Ky. LEXIS 86 ( Ky. 2003 ); McDonald’s Corp. v. Ogborn, 309 S.W.3d 274, 2009 Ky. App. LEXIS 236 (Ky. Ct. App. 2009).

Notes to Unpublished Decisions

1. Coverage.

Unpublished decision: Manufacturing company could not simply invoke the exclusivity provision of the workers’ compensation statute by obtaining workers’ compensation coverage; rather, it could only invoke the exclusivity provision if the workers of the contractor were performing the kind of work that was a regular or recurrent part of the work of the manufacturing company and since the evidence did not show that to be the case, the trial court erred in granting summary judgment to the manufacturing company on the workers’ and spouses’ premises liability claims against the manufacturing company based on asbestos-related illnesses the workers incurred while performing various jobs for various contractors at the manufacturing company’s park. Cain v. GE, 2003 Ky. App. LEXIS 325 (Ky. Ct. App. Dec. 19, 2003), aff'd in part and rev'd in part, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

Opinions of Attorney General.

Where an employer who has elected to operate under the Worker’s Compensation Act fails to keep insured as provided by this section, the Worker’s Compensation Board has authority to terminate his election and such termination should be reported to the Commissioner of the Department of Labor. OAG 69-306 .

The formerly semiannual filing with the Worker’s Compensation Board of proof of insurance form 14 is mandatory since subsection (2) of this section uses the word “shall,” and under KRS Chapter 446, construction of statutes, particularly KRS 446.010(24) (now (36)), “shall” is mandatory and therefore until the legislature qualifies subsection (2), any proposal to modify the reporting form by eliminating the semiannual filing would be illegal. OAG 73-258 .

Where company failed to comply with this section from July 6, 1986, to January 15, 1993, claims made against it for that period may be payable through the Uninsured Employers’ Fund. OAG 93-18 .

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. III, 21 at 935.

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 64 Ky. L.J. 307 (1975-76).

Underwood, Part-Time Prosecutors and Conflicts of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1 (1993).

342.342. Annual review of individual self-insurance administrative regulations — Annual report on financial soundness of self-insurers and self-insurance groups — Division of Security and Compliance expansion.

  1. Notwithstanding the provisions of KRS 342.340 , KRS 342.350 , or any administrative regulations promulgated pursuant to those provisions, the commissioner shall annually review the adequacy of the financial or other security requirements contained in administrative regulations, promulgated pursuant to the individual self-insurance provisions in this chapter. The commissioner shall report the results of the review to the Labor and Industry Committee of the General Assembly and any recommendations for proposed changes to insure the financial soundness of the individual self-insurers authorized pursuant to this chapter. In addition, the commissioner shall report not less often than annually a summary report on the financial soundness of the individual self-insurers.
  2. The Labor and Industry Committee of the General Assembly shall annually review the administrative regulations promulgated pursuant to the individual provisions under this chapter.
  3. On July 1, 1994, the Division of Security and Compliance of the Department of Workers’ Claims in the Labor Cabinet shall be expanded by five (5) employees. These additional employees shall be employed for the purpose of conducting financial audits, examinations, and reviews and other activities necessary to ensure and monitor the financial soundness of the individual self-insured employers authorized pursuant to KRS 342.340 .

History. Enact. Acts 1994, ch. 181, Part 11, § 38, effective April 4, 1994; 2005, ch. 7, § 42, effective March 1, 2005; 2010, ch. 24, § 1821, effective July 15, 2010.

342.345. Certificate of individual self-insurance — Revocation — New certificate — Effect of revocation.

  1. Whenever an employer has complied with the provisions of KRS 342.340 relating to individual self-insurance, the commissioner shall issue to the employer a certificate which shall remain in force for a period fixed by the commissioner. But the commissioner may, upon at least ten (10) days’ notice and a hearing to the employer, revoke or suspend the certificate upon satisfactory evidence that revocation or suspension is appropriate. If the commissioner revokes a certificate, the commissioner may thereafter, upon petition of the employer and a hearing, grant a new certificate, but the employer shall not, as a matter of right, be entitled to a hearing for this purpose sooner than six (6) months following an order of the commissioner revoking the employer’s certificate.
  2. A self-insurer whose certificate to self-insure has been revoked is not relieved of its obligations for compensation to its employees for work-related injuries or occupational diseases that occur during the period of self-insurance. The required security shall be maintained with the commissioner or under the commissioner’s control until each claim for workers’ compensation benefits has been paid, been settled, or lapsed under this chapter.

History. 4947: repealed in part 1946, ch. 100, § 15, effective October 1, 1947; 1994, ch. 181, Part 11, § 37, effective April 4, 1994; 2005, ch. 7, § 43, effective March 1, 2005; 2010, ch. 24, § 1822, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Old Republic Ins. Co. v. Begley, 314 S.W.2d 552, 1958 Ky. LEXIS 309 ( Ky. 1958 ).

342.347. Examination of finances of individual self-insureds — Annual statement of financial condition — Role of Department of Insurance.

  1. The commissioner or the commissioner’s designee shall have power to examine the financial condition and affairs related to workers’ compensation of any individual self-insureds and shall have free access to books and documents relating to the self-insurance activities of the entity. The commissioner shall so examine each individual self-insured not less frequently than once every four (4) years. Information obtained through the examination shall be exempt from disclosure, under KRS 61.878(1)(c) or (j).
  2. All individual self-insured employers shall file with the commissioner a statement of financial condition audited by an independent certified public accountant on or before one hundred twenty (120) days from the end of the self-insured’s fiscal year for the immediately preceding fiscal year.
  3. The expense of examination shall be borne by the entity examined and shall include reasonable lodging and travel expenses of the commissioner’s designees, and expert assistance as necessarily incurred in the examination.
  4. The Department of Insurance shall approve the form and contents of excess insurance policies and upon request of the commissioner shall review the application for approval of any individual self-insured and render an opinion as to the sufficiency of the excess insurance policies or other security posted by the applicant.
  5. Not less often than biennially, the commissioner of the Department of Insurance shall review the activities, procedures, administrative regulations, and policies of the Department of Workers’ Claims and make such recommendations to the Governor and legislative committees as may be appropriate to strengthen the oversight of individual self-insureds so that payment of liabilities to workers under this chapter is assured.

HISTORY: Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 35, effective December 12, 1996; 2005, ch. 7, § 44, effective March 1, 2005; 2005, ch. 45, § 10, effective June 20, 2005; 2005, ch. 93, § 7, effective March 16, 2005; 2010, ch. 24, § 1823, effective July 15, 2010; 2017 ch. 134, § 11, effective June 29, 2017.

342.350. Mutual insurance associations and reciprocal or interinsurance exchanges for compensation claims — Reinsurance — Self-insured groups — Power to contract, sue, and be sued.

  1. In order to comply with KRS 342.340 , groups of employers may form, either among themselves or with employers in other states, mutual insurance associations, or reciprocal or interinsurance exchanges subject to the insurance laws of this state and any reasonable conditions and restrictions not inconsistent therewith fixed by the commissioner. Membership in these mutual insurance associations or reciprocal or interinsurance exchanges so approved, together with evidence of the payment of premiums due, shall be evidence of compliance with KRS 342.340 .
  2. The commissioner may, except as provided in subsection (3), require any mutual insurance association or reciprocal or interinsurance exchange to purchase an annuity or to effect reinsurance with a company authorized to transact insurance in this state or to make a deposit with a bank or trust company of this state that shall in either case be approved by the commissioner for the purpose of fully securing the payment of all deferred installments upon any claim for compensation.
  3. Any mutual insurance association or reciprocal or interinsurance exchange possessing a surplus of at least one hundred thousand dollars ($100,000) and not less in amount than the capital required of a domestic stock insurance company transacting the same kind of insurance shall not be required to purchase an annuity or effect reinsurance with a company authorized to transact insurance in this state or to make a deposit with a bank or trust company of this state for the purpose of fully securing the payment of all deferred installments upon any claim for compensation.
  4. In addition, under the provisions of KRS 304.50-010 and administrative regulations promulgated by the commissioner of the Department of Insurance, twenty (20) or more employers with common interests or membership in a bona fide trade association or two (2) or more city, county, charter county, urban-county, or consolidated local government employers or their agencies may enter into agreements to pool their liabilities under this chapter for the purpose of qualifying as self-insured groups. Any heterogeneous self-insured group so authorized may contract and may sue and be sued in the name adopted by the group.

History. 4948: amend. Acts 1976 (Ex. Sess.), ch. 26, § 4, effective January 1, 1977; 1980, ch. 104, § 11, effective July 15, 1980; 1982, ch. 447, § 11, effective January 1, 1984; 1990, ch. 35, § 1, effective July 13, 1990; 1990, ch. 490, § 5, effective July 13, 1990; 1994, ch. 181, Part 15, § 84, effective April 4, 1994; 2005, ch. 7, § 45, effective March 1, 2005; 2010, ch. 24, § 1824, effective July 15, 2010; 2013, ch. 75, § 3, effective June 25, 2013.

NOTES TO DECISIONS

  1. Construction With Other Laws.
  2. Joint and Several Liability.
1. Construction With Other Laws.

KRS 342.375 applies to conventional full coverage workers’ compensation insurance policies, but not to the specialized excess insurance requirements under KRS 342.350 and its accompanying regulations. Ky. League of Cities, Inc. v. General Reinsurance Corp., 2001 U.S. Dist. LEXIS 20210 (W.D. Ky. Nov. 2, 2001).

2. Joint and Several Liability.

Employers remained jointly and severally liable under the Indemnity Agreement because, by obtaining the waiver for aggregate excess insurance, but still maintaining specific excess insurance, the trustees fulfilled both their statutory requirements and contractual obligations; therefore, there was no breach of the Indemnity Agreement which would allow the employers to rescind the joint and several provisions. Curtis Green & Clay Green, Inc. v. Clark, 318 S.W.3d 98, 2010 Ky. App. LEXIS 89 (Ky. Ct. App. 2010).

Opinions of Attorney General.

As long as cities and counties comply with KRS 65.210 to 65.300 and meet the financial requirements of the Workers’ Compensation Board and rules and regulations thereof, there is no impediment to cities joining with other cities and/or counties to provide workers’ compensation self-insurance. OAG 78-115 .

Where 90 counties and 180 cities in Kentucky pooled their workers’ compensation liabilities for the purpose of qualifying as self-insurers, it is not necessary for the cities and counties to advertise and accept bids from insurance companies on this portion of their budget expenditures since excess moneys are returned to the counties and cities after the payment of claims and administrative costs and these employers are not purchasing insurance, but are simply paying their own claims. OAG 80-343 .

Copies of documents, which were sent to the Department of Workers’ Claims by the Kentucky Associated General Contractors Self-Insurers’ Fund as required by this section and 803 KAR 25:025, which included a copy of a certified audit that was filed by the Associated General Contractors Self-Insurers’ Fund and other pertinent financial information filed by this self-insurers’ fund, were not exempt from inspection pursuant to former KRS 61.878(1)(b); this information should have been available for public inspection in order that potential insureds could satisfy themselves about the financial stability and reliability of an insurance company. OAG 89-26 .

Research References and Practice Aids

Cross-References.

Insurance generally, KRS Ch. 304.

Kentucky Law Journal.

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

342.352. Voluntary programs for integrated management of employer’s worker compensation and group health insurance claims — Twenty-four hour coverage.

  1. The commissioner may establish one (1) or more programs for interested employers of integrated management of an employer’s workers’ compensation and group health insurance claims by an insurer authorized to do business in the Commonwealth and may promulgate any administrative regulations necessary to implement the provisions of this subsection. The integrated management of such claims shall in no event affect any benefits, rights, or coverage established pursuant to a workers’ compensation insurance policy. Treatment for work-related conditions shall not be subject to either copayments or deductibles. The commissioner shall make a report comparing the results of each program to the expected results under traditional workers’ compensation insurance and traditional workers’ compensation with a managed care program. The program shall serve as a tentative model for future experiments.
  2. No policy for twenty-four (24) hour coverage shall become effective until it is reviewed and approved by the commissioner, in consultation with the commissioner of the Department of Insurance.
  3. The purchase of a twenty-four (24) hour health policy shall not constitute an exemption from statutory provisions which require other nonmedical insurance coverage. However, an insurance carrier shall reduce its premium for insurance coverage written without the medical or health care component. Notwithstanding the provisions of Subtitle 13 of KRS Chapter 304, the premium reduction required in this subsection shall be subject to the approval of the commissioner of the Department of Insurance.
  4. If an employer obtains a twenty-four (24) hour health insurance policy, pursuant to this section, to secure payment of compensation for medical care and treatment under this chapter, the employer shall also procure an insurance policy which shall provide indemnity benefits to ensure that the total coverage afforded by both the twenty-four (24) hour insurance policy and the policy providing indemnity benefits shall provide the total compensation required by this chapter.
  5. The participants in a project for twenty-four (24) hour health coverage shall comply with periodic reporting requirements of the commission.
  6. Each agency of state government shall cooperate with the commissioner if requested to provide information for the purposes of this section.

History. Enact. Acts 1994, ch. 181, Part 6, § 23, effective April 4, 1994; 1996, ch. 355, § 13, effective July 15, 1996; 1996 (1st Ex. Sess.), ch. 1, § 74, effective December 12, 1996; 2010, ch. 24, § 1825, effective July 15, 2010.

Research References and Practice Aids

Kentucky Bench & Bar.

Jones, A Defense Perspective of the Kentucky Workers’ Compensation Reform Legislation (House Bill 928), Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 20.

Northern Kentucky Law Review.

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

342.355. Private insurance — Requirements — Approval of board — Termination. [Repealed.]

Compiler’s Notes.

This section (4949) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973.

342.360. Agreements in policy as to notice — Jurisdiction and liability of insurer.

All policies insuring the payment of compensation under this chapter shall contain a clause to the effect that as between the employer and the insurer the notice to or knowledge of the occurrence of the injury on the part of the insured shall be considered notice or knowledge, as the case may be, on the part of the insurer; that jurisdiction of the insured for the purpose of this chapter shall be jurisdiction of the insurer; and that the insurer shall in all things be bound by and subject to the awards, judgments or decrees rendered against the insured.

History. 4950.

NOTES TO DECISIONS

  1. Contest of Issues.
  2. Action Against Insurer.
1. Contest of Issues.

In the absence of an allegation of lack of jurisdiction, fraud, or collusion, neither party has the right to recontest the issues raised by the denials contained in the answer after adjudication by the board. Rhymer v. Federal Life Ins. Co., 13 F. Supp. 181, 1936 U.S. Dist. LEXIS 1442 (D. Ky. 1936 ), aff'd, 95 F.2d 999, 1938 U.S. App. LEXIS 4290 (6th Cir. Ky. 1938 ).

2. Action Against Insurer.

The Circuit Court has jurisdiction over a suit filed to collect disability payments due from an employer and its insurance carrier where the employer was defunct and the insurance carrier was not named in the workers’ compensation award. Fruchtenicht v. United States Fidelity & Guaranty Co., 451 S.W.2d 835, 1969 Ky. LEXIS 20 ( Ky. 1969 ).

Cited:

Cody v. Combs, 302 Ky. 596 , 194 S.W.2d 525, 1946 Ky. LEXIS 656 ( Ky. 1946 ); Lawrence Coal Co. v. Boggs, 309 Ky. 646 , 218 S.W.2d 670, 1949 Ky. LEXIS 781 ( Ky. 1949 ).

342.365. Policy to waive improper notice and be direct promise to employee.

No policy of insurance against liability for compensation arising under this chapter shall be issued unless it contains the agreement of the insurer that it will promptly pay to the person entitled to it all benefits conferred by this chapter and all installments of the compensation that may be awarded or agreed upon, and that the obligation shall not be affected by any default in the giving of any notice required by such policy, or otherwise. This agreement shall be construed to be a direct promise by the insurer to the person entitled to compensation, enforceable in his name.

History. 4951.

NOTES TO DECISIONS

  1. Liability of Insurance Carrier.
  2. Statutory Requirements.
1. Liability of Insurance Carrier.

Worker’s compensation insurance carrier, who was obligated under this section to pay benefits to personal representative of deceased employee of the insured, was also subject to a suit under law that provided that whenever some other person other than the employer was liable to pay damages employee could either claim compensation or proceed against the third party, as a negligent third party, for its failure to make adequate safety inspections. Bryant v. Old Republic Ins. Co., 431 F.2d 1385, 1970 U.S. App. LEXIS 7109 (6th Cir. Ky. 1970 ).

Employer’s workers’ compensation insurance carrier was liable for any increase in benefits under KRS 342.165(1) despite a contractual term to the contrary since the Legislature has determined that an employer’s entire liability for benefits must be secured as a matter of public policy under KRS 342.340 , 342.365 , and 342.375 . AIG/AIU Ins. Co. v. South Akers Mining Co., LLC, 192 S.W.3d 687, 2006 Ky. LEXIS 8 ( Ky. 2006 ).

2. Statutory Requirements.

KRS 342.340(1), 342.365 , and 342.375 require employers to be fully covered by their insurance carriers to ensure adequate compensation for employees and to prevent employers’ funds from depletion before adequate compensation is recovered. AIG/AIU Ins. Co. v. S. Akers Mining Co., 2004 Ky. App. LEXIS 338 (Ky. Ct. App. Nov. 24, 2004), aff'd, 192 S.W.3d 687, 2006 Ky. LEXIS 8 ( Ky. 2006 ).

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973); Lawrence Coal Co. v. Boggs, 309 Ky. 646 , 218 S.W.2d 670, 1949 Ky. LEXIS 781 ( Ky. 1949 ); Old Republic Ins. Co. v. Begley, 314 S.W.2d 552, 1958 Ky. LEXIS 309 ( Ky. 1958 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Lowther and Lowther, Workplace Injuries: Safety Penalties and Workers’ Compensation Claims, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 22.

Northern Kentucky Law Review.

Jackson and Crase, A Surveyof Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

342.370. Board to approve form of policies. [Repealed.]

Compiler’s Notes.

This section (4952) was repealed by Acts 1952, ch. 182, § 8.

342.375. Policy to cover entire liability of employer — Separate policy for specified plant or location may be authorized.

Every policy or contract of workers’ compensation insurance under this chapter, issued or delivered in this state, shall cover the entire liability of the employer for compensation to each employee subject to this chapter, except as otherwise provided in KRS 342.020 , 342.345 , or 342.352 . However, if specifically authorized by the commissioner, a separate insurance policy may be issued for a specified plant or work location if the liability of the employer under this chapter to each employee subject to this chapter is otherwise secured and provided that no employee transferred from one plant or work location to another within the employment of the same employer shall thereby lose any benefit rights accumulated under the average weekly wage concept.

History. 4953: amend. Acts 1968, ch. 159, § 1; 1987 (Ex. Sess.), ch. 1, § 44, effective January 4, 1988; 1994, ch. 181, Part 6, § 24, effective April 4, 1994; 1994, ch. 512, Part 6, § 21, effective July 15, 1994; 2010, ch. 24, § 1826, effective July 15, 2010; 2020 ch. 36, § 42, effective July 15, 2020.

NOTES TO DECISIONS

  1. Policy.
  2. —Coverage.
  3. — — Necessary or Incidental.
  4. — Liability of Employer.
1. Policy.

This section does make the liability of the insurer complete, regardless of contingencies and policy provisions indicated by riders or indorsements; but this statutory mandate is accompanied by the specific requirement that every policy shall on its face designate the class of risk insured. Old Republic Ins. Co. v. Begley, 314 S.W.2d 552, 1958 Ky. LEXIS 309 ( Ky. 1958 ).

KRS 342.375 applies to conventional full coverage workers’ compensation insurance policies, but not to the specialized excess insurance requirements under KRS 342.350 and its accompanying regulations. Ky. League of Cities, Inc. v. General Reinsurance Corp., 2001 U.S. Dist. LEXIS 20210 (W.D. Ky. Nov. 2, 2001).

KRS 342.340(1), 342.365 , and 342.375 require employers to be fully covered by their insurance carriers to ensure adequate compensation for employees and to prevent employers’ funds from depletion before adequate compensation is recovered. AIG/AIU Ins. Co. v. S. Akers Mining Co., 2004 Ky. App. LEXIS 338 (Ky. Ct. App. Nov. 24, 2004), aff'd, 192 S.W.3d 687, 2006 Ky. LEXIS 8 ( Ky. 2006 ).

2. —Coverage.

Where compensation policy was issued to city to cover drivers and chauffeurs engaged in street-cleaning department and street-making department, policy did not cover employee driving truck for city and injured while delivering coal to gas plant. Aetna Life Ins. Co. v. Henderson, 228 Ky. 1 , 14 S.W.2d 211, 1928 Ky. LEXIS 4 ( Ky. 1 928).

Insurance carrier was liable to city under compensation policy indemnifying against injuries to employees performing work necessary for conduct of gasworks where employee was killed while delivering coal to gas plant and his wages were chargeable to gasworks. Henderson v. Royal Indem. Co., 227 Ky. 746 , 14 S.W.2d 213, 1928 Ky. LEXIS 519 ( Ky. 1928 ).

Under policy of insurance issued to cover employer in junk business containing clause “no blasting and wrecking of buildings,” insurance company was not liable for injuries to employees when wall fell while wrecking warehouse. Nussbaum v. General Acc. Fire & Life Assurance Corp., 238 Ky. 348 , 38 S.W.2d 1, 1931 Ky. LEXIS 237 ( Ky. 1931 ).

Where a long-term employee of a supply company was injured while temporarily working at a gas station owned individually by one of the owners of the corporation employing him he was covered by the workers’ compensation insurance carried by the corporate employer. Bituminous Casualty Corp. v. Robinson, 476 S.W.2d 839, 1972 Ky. LEXIS 401 ( Ky. 1972 ).

Where a rental house was used to store flower bulbs, nursery equipment, and fertilizer, water from the house was used for the nursery and paid for by the florist company, and the house was being rented to a man who watched over the nursery as part payment of the rental fee, such house was being used as an integral part of the florist business and the widow and dependent children of the regular employee who was killed while working on the house were entitled to protection under the company’s workers’ compensation policy. Transport Ins. Co. v. Wimpee, 486 S.W.2d 709, 1972 Ky. LEXIS 120 ( Ky. 1972 ).

Where the form required to be filed with the Board provided space for listing exceptions to coverage and where the city’s insurance carrier listed no exceptions, the listing or nonlisting of exceptions had reference only to insurance coverage of the city’s liability and not to the extent of the city’s liability coverage. United States Fidelity & Guaranty Co. v. Alexander, 494 S.W.2d 522, 1973 Ky. LEXIS 449 ( Ky. 1973 ).

Because the decedent was a corporate officer of the employer, he was an employee pursuant to KRS 342.640 regardless of whether he was also a shareholder; further, KRS 342.375 required every workers’ compensation policy to cover an employer’s entire liability, and, as the administrative law judge found that the insurer failed to show that the employer filed a waiver of coverage with the Office of Workers’ Claims (now Department of Workers’ Claims) as required by KRS 342.395(1) and 803 KAR 25:130, § 1 before the injury, a policy endorsement that excluded the decedent from coverage was ineffective. Ky. Employers' Mut. Ins. v. J & R Mining, Inc., 279 S.W.3d 513, 2009 Ky. LEXIS 77 ( Ky. 2009 ).

Workers’ Compensation Board properly affirmed an opinion, award, and order of administrative law judges (ALJ) that determined, inter alia, that an injured worker was an employee of an employee leasing company because the contract between the company and a restaurant expressly stated that the company was an independent contractor and all individuals assigned to the restaurant were workers of the company, and the worker did not meet the definition of a temporary worker as she was not furnished to an entity by a temporary help service, and the ALJ’s reference to her as such was not a finding of fact, but only a means of referring to her as a worker who worked on an as-needed basis. JSE, Inc. v. Ahart, 2020 Ky. App. LEXIS 31 (Ky. Ct. App. Mar. 13, 2020).

3. — — Necessary or Incidental.

Where the dead employee was hired as a tractor-trailer operator but was also a licensed airplane pilot and was used as a pilot by his employer and was killed while flying a plane on a business trip for his employer, he was covered under his employer’s workers’ compensation policy even though the work classification was not listed on the policy, because he was engaged in work that was incidental to the business operation the insurance was intended to cover. Globe Indem. Co. v. Doyle, 426 S.W.2d 425, 1968 Ky. LEXIS 642 ( Ky. 1968 ).

A workers’ compensation policy covered injuries sustained by an employee who was hired to help relocate a machine shop, although he was not engaged in machine shop operations because the relocation was an activity “necessary or incidental” to the operation of the machine shop. Aetna Casualty & Surety Co. v. Freeman, 427 S.W.2d 220, 1968 Ky. LEXIS 666 ( Ky. 1968 ).

4. — Liability of Employer.

Where a logging and lumbering company had elected to operate under the compensation law by such classification and took out a policy of insurance covering its liability for compensation to its employees, describing therein the locations at which its business was conducted, it was liable to insurer for premium on policy on basis of total remuneration of its employees regardless of whether they worked at such specified places or not, as it was liable to the employees without respect to location of their employment. Buckhorn Coal & Lumber Co. v. Georgia Casualty Co., 222 Ky. 683 , 2 S.W.2d 383, 1928 Ky. LEXIS 235 ( Ky. 1928 ).

Employer’s workers’ compensation insurance carrier was liable for any increase in benefits under KRS 342.165(1) despite a contractual term to the contrary since the Legislature has determined that an employer’s entire liability for benefits must be secured as a matter of public policy under KRS 342.340 , 342.365 , and 342.375 . AIG/AIU Ins. Co. v. South Akers Mining Co., LLC, 192 S.W.3d 687, 2006 Ky. LEXIS 8 ( Ky. 2006 ).

Cited:

Rhymer v. Federal Life Ins. Co., 13 F. Supp. 181, 1936 U.S. Dist. LEXIS 1442 (D. Ky. 1936 ), aff’d, 95 F.2d 999, 1938 U.S. App. LEXIS 4290 (6th Cir. Ky. 1938 ); Kentucky Employers’ Mut. Ins. v. J & R Mining, Inc., — S.W.3d —, 2008 Ky. App. LEXIS 51 (Ky. Ct. App. 2008).

Opinions of Attorney General.

The employees of the General Assembly are covered by the Workers’ Compensation Act and are entitled to its benefits for injury incurred in the course and scope of their employment. OAG 70-601 .

Where the school board employs bus drivers on some routes and hires contractors with their own buses on other routes, all the drivers are entitled to workers’ compensation coverage, since in both cases the Board determines the route taken, the stops made, the manner of operation, the hours of use and employment. OAG 72-203 .

342.380. Commissioner of Department of Insurance to approve policy — Review — Appeal.

No policy of insurance or rider to be used therewith shall be issued or delivered until a copy of its form has been filed with the commissioner of the Department of Insurance at least thirty (30) days before such issue or delivery, unless before the expiration of thirty (30) days the commissioner of the Department of Insurance has approved the form thereof in writing; nor if the commissioner of the Department of Insurance notifies the company in writing that in his opinion the form of the policy or rider does not comply with the laws of this state, specifying fully the reasons for his opinion. Upon petition of the company, the decision of the commissioner of the Department of Insurance shall be subject to review by the Franklin Circuit Court and to appeal therefrom to the Court of Appeals.

History. 4954; 1994, ch. 181, Part 15, § 85, effective April 4, 1994; 1996, ch. 355, § 14, effective July 15, 1996; 2010, ch. 24, § 1827, effective July 15, 2010.

Compiler’s Notes.

Section 18 of Acts 1980, ch. 104, read: “On July 15, 1980, the average insurance rate level for workers’ compensation benefits required by this chapter shall be reduced by not less than twenty-seven (27%) percent from the average rate level in effect immediately prior to such date. Such reduced rates shall remain in effect for at least one (1) year. There shall be no exception to the requirements of this section unless the commissioner of insurance shall find that an intervening statutory change has caused such rates to be inadequate as defined under Chapter 304 of the Kentucky Revised Statutes. In such event, the commissioner may call for a public hearing pursuant to KRS 304.13-050 (repealed) to determine an appropriate rate level.”

Research References and Practice Aids

Cross-References.

Department of Insurance, KRS 304.2-010 , et seq.

342.382. Report of workers’ compensation experience.

  1. Any insurer authorized to write a policy of workers’ compensation insurance shall transmit the following information on its workers’ compensation experience only to the Department of Workers’ Claims each year, and that information shall be certified and reported on a net basis with respect to reinsurance for nationwide experience and direct basis with respect to Kentucky experience:
    1. Direct premiums written;
    2. Direct premiums earned;
    3. Dividends paid or credited to policyholders;
    4. Losses paid;
    5. Allocated loss adjustment expenses;
    6. The ratio of allocated loss adjustment expenses to losses paid;
    7. Unallocated loss adjustment expenses;
    8. The ratio of unallocated loss adjustment expenses to losses paid;
    9. The total of losses paid and unallocated and allocated loss adjustment expenses;
    10. The ratio of losses paid and unallocated and allocated loss adjustment expenses to premiums earned;
    11. The number of claims outstanding as of December 31 of each year;
    12. The total amount of losses unpaid as of December 31 of each year;
    13. The total amount of allocated and unallocated loss adjustment expenses unpaid as of December 31 of each year;
    14. The total of losses paid and allocated loss adjustment expenses and unallocated loss adjustment expenses, plus the total of losses unpaid as of December 31 of each year and loss adjustment expenses unpaid as of December 31 of each year; and
    15. Net investment gain or loss.
  2. Beginning with the report for the period ending December 31, 1989, all future reports shall have all information required by subsection (1) of this section broken down by year for the current and two (2) preceding years.

HISTORY: Enact. Acts 1987 (Ex. Sess.), ch. 1, § 61(9), (10), effective October 26, 1987; 1994, ch. 181, Part 15, § 86, effective April 4, 1994; 2010, ch. 24, § 1828, effective July 15, 2010; 2017 ch. 80, § 26, effective June 29, 2017; 2017 ch. 82, § 9, effective June 29, 2017.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 80 and 82, which do not appear to be in conflict and have been codified together.

342.385. Insurance rates to be reasonable; subject to approval of board and director of insurance. [Repealed.]

Compiler’s Notes.

This section (4955) was repealed by Acts 1946, ch. 100, § 15, and by Acts 1948, ch. 106, § 22.

342.390. Employer’s election to operate under chapter.

Election to operate under this chapter if an employer is not mandatorily subject to the chapter shall be effected by the employer purchasing workers’ compensation insurance or qualifying as a self insured. The proof of election shall be the proof of insurance coverage provided for in KRS 342.340(2).

History. 4956: amend. Acts 1968, ch. 159, § 2; 1976, ch. 160, § 7.

NOTES TO DECISIONS

Cited:

Reliford v. Eastern Coal Corp., 260 F.2d 447, 1958 U.S. App. LEXIS 5104 (6th Cir. 1958); Motteler v. J.A. Jones Constr. Co., 457 F.2d 917, 1972 U.S. App. LEXIS 11007 (7th Cir. 1972); McClary v. McClary, 274 Ky. 299 , 118 S.W.2d 687, 1938 Ky. LEXIS 259 ( Ky. 1938 ); Boone v. Willett Distilling Co., 285 Ky. 353 , 147 S.W.2d 693, 1941 Ky. LEXIS 370 ( Ky. 1941 ); McNeese Constr. Co. v. Harris, 273 S.W.2d 355, 1954 Ky. LEXIS 1156 ( Ky. 1954 ); Old Republic Ins. Co. v. Begley, 314 S.W.2d 552, 1958 Ky. LEXIS 309 ( Ky. 1958 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 64 Ky. L.J. 307 (1975-76).

342.395. Employee deemed to have accepted provisions of chapter — Employee’s written notice of rejection — Withdrawal of election.

  1. Where an employer is subject to this chapter, then every employee of that employer, as a part of his or her contract of hiring or who may be employed at the time of the acceptance of the provisions of this chapter by the employer, shall be deemed to have accepted all the provisions of this chapter and shall be bound thereby unless he or she shall have filed, prior to the injury or incurrence of occupational disease, written notice to the contrary with the employer; and the acceptance shall include all of the provisions of this chapter with respect to traumatic personal injury, silicosis, and any other occupational disease. However, before an employee’s written notice of rejection shall be considered effective, the employer shall file the employee’s notice of rejection with the Department of Workers’ Claims. The commissioner of that department shall not give effect to any rejection of this chapter not voluntarily made by the employee. If an employee withdraws his or her rejection, the employer shall notify the commissioner.
  2. An employer shall not require an employee to execute a rejection of this chapter as either a condition to obtain employment or a condition to maintain employment. An employer shall not terminate an employee for refusal to execute a rejection of this chapter.
  3. Until notice to the contrary as specified in subsection (1) of this section is given to the employer, the measure of liability of the employer shall be determined according to the compensation provisions of this chapter. Any employee, may, without prejudice to any existing right or claim, withdraw his election to reject this chapter by filing with the employer a written notice of withdrawal, stating the date when the withdrawal is to become effective. Following the filing of that notice, the status of the party withdrawing shall become the same as if the former election to reject this chapter had not been made, except that withdrawal shall not be effective as to any injury sustained or disease incurred less than one (1) week after the notice is filed.

History. 4957: amend. Acts 1948, ch. 64, § 15; 1952, ch. 82; 1956, ch. 77, § 14; 1976, ch. 160, § 8; 1994, ch. 181, Part 15, § 87, effective April 4, 1994; 1996, ch. 355, § 15, effective July 15, 1996; 2010, ch. 24, § 1829, effective July 15, 2010.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Purpose.
  3. Acceptance of Act.
  4. Return After Suspension.
  5. Election by Employer.
  6. Employee’s Withdrawal.
  7. Action for Retaliatory Discharge.
  8. Elements of Voluntary Rejection.
  9. Summary Judgment.
1. Constitutionality.

This section, requiring rejection of workers’ compensation coverage to be voluntary does not impair an obligation of a contract, within the meaning of Ky. Const., § 19, since all contracts must be entered voluntarily to be binding. Tri-Gem Coal Co. v. Whitaker, 661 S.W.2d 785, 1983 Ky. App. LEXIS 373 (Ky. Ct. App. 1983).

While there is no set standard under this section defining what would constitute a voluntary rejection, this does not render the statute void for vagueness. Tri-Gem Coal Co. v. Whitaker, 661 S.W.2d 785, 1983 Ky. App. LEXIS 373 (Ky. Ct. App. 1983).

The implied waiver of tort remedies found in this section is not unconstitutional when applied to a minor as it is not a denial of rights ensured under the jural rights doctrine. Roberts by Roberts v. George W. Hill & Co., 23 S.W.3d 635, 2000 Ky. LEXIS 50 ( Ky. 2000 ).

2. Purpose.

The purpose and effect of this section was to shift the burden to the employer to meet or explain away the presumption. McNeese Constr. Co. v. Harris, 273 S.W.2d 355, 1954 Ky. LEXIS 1156 ( Ky. 1954 ).

3. Acceptance of Act.

Where employer kept elections of employees to work under the law on cards rather than in permanent register, testimony of employee’s widow that agents of employer who had charge of such records told her that they had decedent’s election and testimony of a disinterested party who claimed to have seen decedent sign an election was sufficient to support board’s finding that decedent did elect to work under the law, although his election card was not produced and employer introduced a large amount of evidence controverting that of claimants. Blue Diamond Coal Co. v. Sizemore, 254 Ky. 102 , 71 S.W.2d 11, 1934 Ky. LEXIS 40 ( Ky. 1934 ) (decision prior to 1952 amendment).

Provision of this section that unless employee affirmatively rejects compensation law by filing written notice of such rejection, he is deemed to have accepted it, adequately preserves his right of voluntarily electing whether he will accept or reject such law. Wells v. Jefferson County, 255 S.W.2d 462, 1953 Ky. LEXIS 646 ( Ky. 1953 ).

Acceptance of the compensation law by the agricultural employer is effective to protect him and also effective to protect his employee. West v. Hedger, 350 S.W.2d 624, 1961 Ky. LEXIS 117 ( Ky. 1961 ).

Evidence that employment was conditioned upon rejection of workers’ compensation coverage was of sufficient quality and quantity to support the decision of the board that claimant’s rejection was not voluntary and he was entitled to compensation. Tri-Gem Coal Co. v. Whitaker, 661 S.W.2d 785, 1983 Ky. App. LEXIS 373 (Ky. Ct. App. 1983).

The illegal employment of a minor to operate dangerous machinery does not invalidate the implied consent mandated by the statute. Roberts by Roberts v. George W. Hill & Co., 23 S.W.3d 635, 2000 Ky. LEXIS 50 ( Ky. 2000 ).

Employee’s consent to the Kentucky Workers’ Compensation Act negated any argument that the application of KRS 342.610 and 342.690 was unconstitutional under the jural rights doctrine. Rehm v. Navistar Int'l, 2005 Ky. App. LEXIS 48 (Ky. Ct. App. Feb. 25, 2005), aff'd in part and rev'd in part, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

4. Return After Suspension.

Where employer and employee had accepted the provisions of the workers’ compensation law and employee later quit or was discharged but returned to same employment nine (9) weeks thereafter, never having withdrawn his election, his return was within a reasonable time and his original acceptance continued in effect. Sizemore v. Beattyville Co., 195 Ky. 776 , 243 S.W. 1010, 1922 Ky. LEXIS 403 ( Ky. 1922 ) (decision prior to 1952 amendment).

5. Election by Employer.

Notwithstanding a failure to comply with the prescribed formalities, any substantial step taken by the employer to accept the workers’ compensation law would be regarded as an election to operate under the law if failure to go through with it misled or resulted in detriment to the employee. Dick v. International Harvester Co., 310 S.W.2d 514, 1958 Ky. LEXIS 391 ( Ky. 1958 ).

6. Employee’s Withdrawal.

When the employer ceased to comply under the compensation act and the employee did not file notice of withdrawal on a subsequent injury in Kentucky, the employee was covered. Young v. Newsome, 462 S.W.2d 908, 1971 Ky. LEXIS 558 ( Ky. 1971 ).

KRS 342.395 does not draw a distinction between so-called innocent employees and executive officers who are employees pursuant to KRS 342.640(2). For any employee, including executive officers/owners, to validly reject the Workers’ Compensation Act, KRS 342.395 and 803 KAR 25:130, § 1 must be satisfied. Ky. Employers' Mut. Ins. v. J & R Mining, Inc., 2008 Ky. App. LEXIS 51 (Ky. Ct. App. Mar. 7, 2008), aff'd, 279 S.W.3d 513, 2009 Ky. LEXIS 77 ( Ky. 2009 ).

Because the decedent was a corporate officer of the employer, he was an employee pursuant to KRS 342.640 regardless of whether he was also a shareholder; further, KRS 342.375 required every workers’ compensation policy to cover an employer’s entire liability, and, as the administrative law judge found that the insurer failed to show that the employer filed a waiver of coverage with the Office of Workers’ Claims (now Department of Workers’ Claims) as required by KRS 342.395(1) and 803 KAR 25:130, § 1 before the injury, a policy endorsement that excluded the decedent from coverage was ineffective. Ky. Employers' Mut. Ins. v. J & R Mining, Inc., 279 S.W.3d 513, 2009 Ky. LEXIS 77 ( Ky. 2009 ).

7. Action for Retaliatory Discharge.

A complaint seeking damages for wrongful discharge because an employee was terminated for pursuing a claim under KRS Chapter 342 for workers’ compensation states a cause of action. Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 1983 Ky. LEXIS 305 ( Ky. 1983 ), limited, Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 1995 Ky. LEXIS 48 ( Ky. 1995 ), limited, Maiden v. Clark Invs., 1995 Ky. App. LEXIS 179 (Ky. Ct. App. Oct. 20, 1995).

It is an important public interest that injured employees shall receive, and employers shall be obligated to pay, for medical expenses, rehabilitative services and a portion of lost wages, and, therefore, action on the part of an employer which prevents an employee from asserting his statutory right to medical treatment and compensation violates that policy; the only effective way to prevent an employer from interfering with his employees’ rights to seek compensation is to recognize that the latter has a cause of action for retaliatory discharge when the discharge is motivated by the desire to punish the employee for seeking the benefits to which he is entitled by law. Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 1983 Ky. LEXIS 305 ( Ky. 1983 ), limited, Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 1995 Ky. LEXIS 48 ( Ky. 1995 ), limited, Maiden v. Clark Invs., 1995 Ky. App. LEXIS 179 (Ky. Ct. App. Oct. 20, 1995).

Implicit in KRS 342.335 and this section, and in the Workers’ Compensation Act as a whole, is a public policy that an employee has a right to be free to assert a lawful claim for benefits without suffering retaliatory discharge. Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 1983 Ky. LEXIS 305 ( Ky. 1983 ), limited, Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 1995 Ky. LEXIS 48 ( Ky. 1995 ), limited, Maiden v. Clark Invs., 1995 Ky. App. LEXIS 179 (Ky. Ct. App. Oct. 20, 1995).

8. Elements of Voluntary Rejection.

Among the elements of a voluntary rejection of the provisions of the Workers’ Compensation Act, as contemplated by the legislature, is a substantial understanding of the nature of the action and its consequences. Karst Robbins Machine Shop, Inc. v. Caudill, 779 S.W.2d 207, 1989 Ky. LEXIS 101 ( Ky. 1989 ).

Because plaintiff’s decedent never rejected coverage under her employer’s workers’ compensation insurance policy, and had affirmatively embraced it by filing a worker’s compensation claim for an unrelated incident, it was clear that the employer provided decedent with workers’ compensation coverage. Meade v. Arnold, 643 F. Supp. 2d 913, 2009 U.S. Dist. LEXIS 65032 (E.D. Ky. 2009 ).

9. Summary Judgment.

Summary judgment was properly granted for an insured in a premium dispute because, by introducing signed rejection notices under KRS 342.395 , the insured supported its motion; an insurer produced nothing to show a genuine issue of material fact relating to the voluntariness of the notices. It was not determined on appeal that the rejections were voluntarily made; rather, it was found that the insured met its threshold burden for obtaining summary judgment by proffering the presumptively valid notices of rejection. Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 2010 Ky. LEXIS 320 ( Ky. 2010 ).

Cited:

Sears, Roebuck & Co. v. Broughton, 195 F.2d 95, 1952 U.S. App. LEXIS 2907 (6th Cir. 1952), cert. denied, 343 U.S. 953, 72 S. Ct. 1047, 96 L. Ed. 1354, 1952 U.S. LEXIS 2089 (1952); Motteler v. J.A. Jones Constr. Co., 457 F.2d 917, 1972 U.S. App. LEXIS 11007 (7th Cir. 1972); Rainbolt v. Transamerican Freight Lines, Inc., 308 Ky. 214 , 214 S.W.2d 109, 1948 Ky. LEXIS 906 ( Ky. 1948 ); Iori v. Iori, 312 Ky. 518 , 228 S.W.2d 439, 1950 Ky. LEXIS 696 ( Ky. 1950 ); Commonwealth, Dep’t of Highways v. Meyers, 307 S.W.2d 179, 1957 Ky. LEXIS 75 ( Ky. 1957 ); Mahan v. Litton, 321 S.W.2d 243, 1959 Ky. LEXIS 270 ( Ky. 1959 ); Gateway Constr. Co. v. Wallbaum, 356 S.W.2d 247, 1962 Ky. LEXIS 92 ( Ky. 1962 ); McLain v. Dana Corp., 16 S.W.3d 320, 1999 Ky. App. LEXIS 133 (Ky. Ct. App. 1999); Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 2003 Ky. LEXIS 86 ( Ky. 2003 ); Roberts v. George W. Hill & Co., 113 S.W.3d 156, 2003 Ky. LEXIS 168 ( Ky. 2003 ); G.E. v. Cain, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

Opinions of Attorney General.

The Workers’ Compensation Board could not issue a certificate of compliance for an employer who has no workers’ compensation coverage, either with an insurance company or as a self insurer, even though that employer’s present employees chose not to be covered since such an employer would need coverage for such contingencies as new employees not rejecting the act, old employees rescinding prior rejections and employees whose rejection was subsequently adjudicated as not having been given voluntarily or effectively pursuant to this section and persons adjudicated employees that the employer considered to be independent contractors. In such case where there has been noncompliance the board could utilize procedures set out in KRS 342.402 seeking a temporary restraining order or temporary and/or permanent injunction against the employer in the Franklin Circuit Court. OAG 77-527 .

Wholesale use of the rejection forms as compliance with the Workmen’s (now Workers’) Compensation Act, without further scrutiny by the Workers’ Compensation Board, the Department of Labor, or the Department of Mines and Minerals, would, in fact, be indicative of an abuse of the voluntary rejection provisions of the act; voluntary rejection is a valid means of complying with the requirements of the Workers’ Compensation Act and, if a program can be established and maintained whereby the voluntariness of the rejections can be ascertained and all questions regarding same resolved at an early date, then there is no reason to believe that the rejection form of compliance cannot be a viable means of compliance. OAG 78-465 , but see OAG 77-527 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 64 Ky. L.J. 307 (1975-76).

Northern Kentucky Law Review.

Notes, Nelson Steel Corp. v. McDaniel: DiscriminationAgainst Employees Who Have Filed Workers’ Compensation Claims Against PreviousEmployers, 23 N. Ky. L. Rev. 435 (1996).

Jackson and Crase, A Surveyof Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

Kentucky Survey Issue: Article: Off-Duty Privacy: How Far Can Employers Go?, 37 N. Ky. L. Rev. 287 (2010).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Master and Servant, § 282.00.

342.400. Notice of employee’s rejection to be preserved.

  1. All notices of rejection of the provisions of this chapter by employees shall, when executed, be preserved by the employer during the continuation of the employment of those employees whose names are subscribed thereto.
  2. No person shall with fraudulent intent, willfully destroy, convert or secrete any such notice, or willfully deprive the owner or his agent thereof, or erase or obliterate any part thereof.

History. 4958: amend. Acts 1954, ch. 222, § 5.

NOTES TO DECISIONS

1. Permanent Record.

A permanent record in the form of a substantial book is contemplated by the law if it does not actually require it. Blue Diamond Coal Co. v. Sizemore, 254 Ky. 102 , 71 S.W.2d 11, 1934 Ky. LEXIS 40 ( Ky. 1934 ).

342.402. Restraining or enjoining of operations of employer.

The commissioner, upon showing a certification of noncompliance, may temporarily restrain or temporarily or permanently enjoin the further operation of any employer covered by this chapter. The action shall be brought in Franklin Circuit Court.

History. Enact. Acts 1976, ch. 160, § 4; 1987 (Ex. Sess.), ch. 1, § 45, effective January 4, 1988; 1994, ch. 181, Part 15, § 88, effective April 4, 1994; 2010, ch. 24, § 1830, effective July 15, 2010.

Opinions of Attorney General.

The Workers’ Compensation Board could not issue a certificate of compliance for an employer who has no workers’ compensation coverage, either with an insurance company or as a self insurer, even though that employer’s present employees chose not to be covered since such an employer would need coverage for such contingencies as new employees not rejecting the act, old employees rescinding prior rejections and employees whose rejection was subsequently adjudicated as not having been given voluntarily or effectively pursuant to KRS 342.395 and persons adjudicated employees that the employer considered to be independent contractors. In such case where there has been noncompliance the Board could utilize procedures set out in this section seeking a temporary restraining order or temporary and/or permanent injunction against the employer in the Franklin Circuit Court. OAG 77-527 .

342.405. Withdrawal from election to operate or rejection of chapter — Filing — Effect — Posted notice. [Repealed.]

Compiler’s Notes.

This section (4959: amend. Acts 1954, ch. 222, § 6) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.660(3).

342.410. Employer who fails to elect denied certain defenses at law. [Repealed.]

Compiler’s Notes.

This section (4960) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.690(2).

342.415. Employee who rejects provisions of chapter is subject to common-law defenses. [Repealed.]

Compiler’s Notes.

This section (4961: amend. Acts 1954, ch. 222, § 7) was repealed by Acts 1972, ch. 78, § 36, effective January 1, 1973. For present law see KRS 342.690(3).

342.420. Employee not to pay premium for compensation.

No agreement by any employee to pay any portion of the insurance premium paid by his employer shall be valid. No employer shall deduct any portion of such premium from the wages or salary of any employee entitled to the benefits of this chapter.

History. 4962.

Opinions of Attorney General.

School board cannot charge back workers’ compensation cost to a contract school bus driver. OAG 72-203 .

Research References and Practice Aids

Northern Kentucky Law Review.

Jackson and Crase, A Surveyof Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

342.425. Attorneys required to represent department, its employees, the board, or administrative law judges.

Upon the request of the commissioner, the Attorney General, or, under his or her direction, the Commonwealth’s attorney or county attorney of any county, shall institute and prosecute the necessary actions or proceedings for the enforcement of any of the provisions of this chapter arising within his or her jurisdiction, and shall defend in like manner all actions or proceedings brought against the department, the employees thereof, board members, or administrative law judges in their official capacity.

History. 4963: amend. Acts 1987 (Ex. Sess.), ch. 1, § 46, effective January 4, 1988; 1994, ch. 181, Part 15, § 89, effective April 4, 1994; 2010, ch. 24, § 1831, effective July 15, 2010.

NOTES TO DECISIONS

  1. Fraud.
  2. Conflicts of Interest.
1. Fraud.

Employment of an assistant attorney general to represent claimant before Workers’ Compensation Board after claim was denied by referee, though an impropriety, did not constitute fraud in the absence of a showing that Board was influenced by the position of the assistant attorney general rather than the validity of the arguments advanced by him. Crummies Creek Coal Co. v. Taylor, 283 Ky. 364 , 141 S.W.2d 287, 1940 Ky. LEXIS 332 ( Ky. 1940 ).

2. Conflicts of Interest.

Since a conflict of interest arises for an attorney only when there are conflicting attorney-client relationships in existence at the same time, a county attorney who presents the claim of a private party before the Workers’ Compensation Board is guilty of no conflict of interest simply because he might some day be called upon to represent the Board. In re Advisory Opinion of Kentucky Bar Asso., 526 S.W.2d 306, 1974 Ky. LEXIS 2 ( Ky. 1974 ).

Opinions of Attorney General.

It is improper for a county attorney to represent clients who have claims before the Workers’ Compensation Board during his term of office. OAG 69-194 .

Research References and Practice Aids

Kentucky Law Journal.

Underwood, Part-Time Prosecutors and Conflicts of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1 (1993).

342.430. Blank forms to be furnished by commissioner.

The commissioner shall prepare and furnish, free of charge, blank forms of all notices, claims, reports, proofs, and other blank forms and literature which he or she considers proper and requisite to the efficient administration of this chapter. He or she may authorize the publication and distribution of these blanks by employers and their insurers in manner and form provided by him or her, and shall promulgate administrative regulations for their distribution so that they may be readily available.

History. 4964; 1994, ch. 181, Part 15, § 90, effective April 4, 1994; 2010, ch. 24, § 1832, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Reliford v. Eastern Coal Corp., 260 F.2d 447, 1958 U.S. App. LEXIS 5104 (6th Cir. 1958).

342.435. Commissioner’s annual report.

Annually on or before the fifteenth day of December, the commissioner shall make a report to the Governor for the preceding fiscal year, which shall include a statement of the number of awards made and of claims rejected by the board and each administrative law judge, a general statement of the causes of accident leading to the injuries for which awards were made or rejected claims based, together with any other information which the commissioner deems proper to call to the attention of the Governor, including any recommendations he may have to make, and it shall be the duty of the commissioner to publish and distribute among employers and employees any general information as to the business transacted by the department as may be useful and necessary. The annual report shall not exceed ten thousand (10,000) copies. All printing of the department shall be done by the contractor or contractors for public printing, subject to the provisions of the general laws governing public printing applicable thereto.

History. 4965: amend. Acts 1944, ch. 82, § 5; 1987 (Ex. Sess.), ch. 1, § 47, effective January 4, 1988; 1994, ch. 181, Part 15, § 91, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 64, effective December 12, 1996; 2000, ch. 514, § 26, effective July 14, 2000; 2010, ch. 24, § 1833, effective July 15, 2010.

Research References and Practice Aids

Cross-References.

Reports to Governor, KRS 12.110 .

342.440. Fund for administration. [Repealed.]

Compiler’s Notes.

This section (4968: amend. Acts 1980, ch. 188, § 274, effective July 15, 1980) was repealed by Acts 1987 (Ex. Sess.), ch. 1, § 72(2), effective January 4, 1988.

342.445. Definitions — Insurance carrier to pay tax premiums. [Repealed.]

Compiler’s Notes.

This section (4968-1: amend. Acts 1948, ch. 60, § 1; 1980, ch. 104, § 12, effective July 15, 1980) was repealed by Acts 1987 (Ex. Sess.), ch. 1, § 72(2), effective January 4, 1988.

342.447. Insurance companies’ payments of amounts collected for taxes and assessments of Kentucky Reinsurance Association or Department of Revenue mandatory — Audits to ensure compliance.

  1. All funds collected by insurance companies from their insureds, prior to October 26, 1987, for assessments of the Kentucky Reinsurance Association or special fund taxes and assessments of the Kentucky Department of Revenue not previously paid, shall be paid in full by January 1, 1988, to the Kentucky Workers’ Compensation Funding Commission.
  2. To ensure compliance with the provisions of subsection (1) of this section, the Department of Revenue shall conduct audits of insurance companies. The costs of such audits shall be borne by the Kentucky Workers’ Compensation Funding Commission. The Department of Revenue may enter an agreement with the Department of Insurance for assistance in conducting such audits or it may hire additional auditors on a temporary basis. The audits shall commence within sixty (60) days from October 26, 1987, and shall be completed within six (6) months. The aggregate findings of such audits shall be presented to the commissioner of revenue, the commissioner of insurance, the Kentucky Workers’ Compensation Funding Commission, and the Governor.
  3. If the audits reveal noncompliance with subsection (1) of this section, the Department of Revenue shall notify the affected party of such fact. The affected party shall remit the amount in question not later than thirty (30) days following notification and the Department of Revenue shall institute a civil action in Franklin Circuit Court if remittance is not made within such thirty (30) day period.
  4. The failure of an insurance company to comply with the provisions of this section shall constitute grounds for the revocation by the commissioner of insurance of such entity’s authority to write workers’ compensation coverage in the Commonwealth.
  5. The Department of Revenue shall report to the commissioner of insurance the failure of any insurance company to comply with the provisions of this section and the commissioner of insurance shall institute revocation procedures of such entity’s authority to write workers’ compensation coverage in the Commonwealth.
  6. “Funds collected” as used in subsection (1) of this section shall mean all funds collected without reduction for credits, refund, or returns of any type made to insureds or group members after September 1, 1987.

History. Enact. Acts 1987 (Ex. Sess.), ch. 1, § 70, effective October 26, 1987; 2005, ch. 85, § 684, effective June 20, 2005; 2010, ch. 24, § 1834, effective July 15, 2010.

342.450. Insurance premium tax — Additional assessments — Annual return of insurance carrier — Amount of tax on premiums. [Repealed.]

Compiler’s Notes.

This section (4968-2: amend. Acts 1948, ch. 60, § 2; 1966, ch. 187, Part IV, § 11; 1966, ch. 255, § 256; 1984, ch. 245, § 1; 1986, ch. 496, § 26; 1987 (Ex. Sess.), ch. 48, § 1) was repealed by Acts 1987 (Ex. Sess.), ch. 1, § 72(2), effective January 4, 1988.

342.455. Procedure if insurance company fails to make return. [Repealed.]

Compiler’s Notes.

This section (4968-3: amend. Acts 1966, ch. 187, Part IV, § 12) was repealed by Acts 1987, ch. 1, § 72(2), effective January 4, 1988.

342.460. Withdrawal from business in Kentucky before special fund assessments and other taxes fall due or failure to pay tax — Collection — Attorney’s fees.

If any such insurance carrier withdraws from business in this state before the special fund assessments and other taxes required in this chapter fall due or fails to pay such tax, the funding commission shall at once proceed to collect it. The funding commission may employ any legal process necessary for that purpose. The suit may be brought by the funding commission in any court of this state having jurisdiction. Reasonable attorney’s fees may be taxed as costs therein, and process may issue to any county of the state and may be served as in civil actions, or, in cases of unincorporated associations, partnerships, interindemnity contracts or other plan or scheme, upon the principal agent of the parties thereto.

History. 4968-4: amend. Acts 1966, ch. 187, Part IV, § 13; 1987 (Ex. Sess.), ch. 1, § 49, effective October 26, 1987.

342.465. Persons not to act for unauthorized insurance company nor to make false statement or return.

No person shall act or assume to act in this state as agent for any such insurance carrier whose authority to do business in this state has been suspended, while such suspension remains in force. No person shall willfully make a false or fraudulent statement of the business or condition of or false return concerning any such insurance carrier.

History. 4968-5.

342.470. How notice may be given to insurance carrier.

Whenever by this chapter any officer is required to give any notice to an insurance carrier, it may be given by delivery, or by mailing a registered letter properly addressed and stamped, to the principal office or chief agent of that insurance carrier within the state, or to its home office, or to the secretary, general agent or chief officer thereof in the United States.

History. 4968-6.

Research References and Practice Aids

Kentucky Bench & Bar.

Bland, The Bankruptcy Reform Act of 1978: An Overview, Vol. 44, No. 1, January 1980, Ky. Bench & Bar 8.

342.475. Employer carrying own risk to pay maintenance fund tax. [Repealed.]

Compiler’s Notes.

This section (4968-8: amend. Acts 1962, ch. 276, § 4; 1974, ch. 65, § 2; 1984, ch. 245, § 2; 1986, ch. 496, § 27; 1987 (Ex. Sess.), ch. 1, § 50) was repealed by Acts 1987 (Ex. Sess.), ch. 1, § 72(2), effective January 4, 1988.

342.480. Maintenance fund — Use — Not to lapse — Publication of proceedings. [Repealed.]

Compiler’s Notes.

This section (4968-9a: amend. Acts 1952, ch. 182, § 9; 1954, ch. 222, § 8; 1964, ch. 192, § 26; 1966, ch. 195, § 1; 1972, ch. 251, § 23) was repealed by Acts 1987 (Ex. Sess.), ch. 1, § 72(2), effective January 4, 1988.

342.485. Procedure if surplus exceeds $500,000. [Repealed.]

Compiler’s Notes.

This section (4968-9: amend. Acts 1950, ch. 188, § 3; 1954, ch. 222, § 9; 1960, ch. 147, § 17; 1966, ch. 195, § 2) was repealed by Acts 1972, ch. 78, § 36 and Acts 1972, ch. 251, § 24.

342.490. Board not to incur expense exceeding appropriation. [Repealed.]

Compiler’s Notes.

This section (4968-9) was repealed by Acts 1987 (Ex. Sess.), ch. 1, § 72(1), effective December 29, 1987.

342.495. Kentucky Employee’s Insurance Association created — Attached to Department of Labor for administrative purposes. [Repealed.]

Compiler’s Notes.

This section (4969, 4975: amend. Acts 1984, ch. 414, § 38, effective July 13, 1984) was repealed by Acts 2010, ch. 24, § 1936, effective July 15, 2010.

342.500. Board of directors — Selection — Term. [Repealed.]

Compiler’s Notes.

This section (4970) was repealed by Acts 2010, ch. 24, § 1936, effective July 15, 2010.

342.505. Board officers elected annually. [Repealed.]

Compiler’s Notes.

This section (4973) was repealed by Acts 2010, ch. 24, § 1936, effective July 15, 2010.

342.510. Quorum of board — Vacancies. [Repealed.]

Compiler’s Notes.

This section (4974) was repealed by Acts 2010, ch. 24, § 1936, effective July 15, 2010.

342.515. Representation of subscribers. [Repealed.]

Compiler’s Notes.

This section (4976) was repealed by Acts 2010, ch. 24, § 1936, effective July 15, 2010.

342.520. Subscriptions required to issue first policy. [Repealed.]

Compiler’s Notes.

This section (4977) was repealed by Acts 2010, ch. 24, § 1936, effective July 15, 2010.

342.525. Procedure required before first policy issued. [Repealed.]

Compiler’s Notes.

This section (4978) was repealed by Acts 2010, ch. 24, § 1936, effective July 15, 2010.

342.530. Board to group subscribers — Amount of premiums. [Repealed.]

Compiler’s Notes.

This section (4979) was repealed by Acts 2010, ch. 24, § 1936, effective July 15, 2010.

342.535. Association to fix contingent liability — Limit. [Repealed.]

Compiler’s Notes.

This section (4980) was repealed by Acts 2010, ch. 24, § 1936, effective July 15, 2010.

342.540. Assessments. [Repealed.]

Compiler’s Notes.

This section (4981) was repealed by Acts 2010, ch. 24, § 1936, effective July 15, 2010.

342.545. Dividends — All funds available for contingent liability. [Repealed.]

Compiler’s Notes.

This section (4982) was repealed by Acts 2010, ch. 24, § 1936, effective July 15, 2010.

This section formerly contained two subsections. However, subsection (2) was repealed by Acts 1948, ch. 106, § 22.

342.550. Executive director of insurance to approve premiums, etc. [Repealed.]

Compiler’s Notes.

This section (4983) was repealed by Acts 2010, ch. 24, § 1936, effective July 15, 2010.

342.555. Board to make safety regulations — Inspections — Review of regulation. [Repealed.]

Compiler’s Notes.

This section (4987) was repealed by Acts 2010, ch. 24, § 1936, effective July 15, 2010.

Research References and Practice Aids

Cross-References.

Administrative regulations, adoption and effective date, KRS 13A.330 .

342.610. Liability for compensation — Contractor and subcontractor — Limitation of liability if employee intended to kill or injure self or another — Illegal substances — Employer’s intention to produce injury or death — Builder’s proof of coverage required for issuance of building permit — Notice required to be posted by employers.

  1. Every employer subject to this chapter shall be liable for compensation for injury, occupational disease, or death without regard to fault as a cause of the injury, occupational disease, or death.
  2. A contractor who subcontracts all or any part of a contract and his or her carrier shall be liable for the payment of compensation to the employees of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured the payment of compensation as provided for in this chapter. Any contractor or his or her carrier who shall become liable for such compensation may recover the amount of such compensation paid and necessary expenses from the subcontractor primarily liable therefor. A person who contracts with another:
    1. To have work performed consisting of the removal, excavation, or drilling of soil, rock, or mineral, or the cutting or removal of timber from land; or
    2. To have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person
  3. Liability for compensation shall not apply to injury, occupational disease, or death to the employee if the employee willfully intended to injure or kill himself, herself, or another.
  4. If an employee voluntarily introduced an illegal, nonprescribed substance or substances or a prescribed substance or substances in amounts in excess of prescribed amounts into his or her body detected in the blood, as measured by a scientifically reliable test, that could cause a disturbance of mental or physical capacities, it shall be presumed that the illegal, nonprescribed substance or substances or the prescribed substance or substances in amounts in excess of prescribed amounts caused the injury, occupational disease, or death of the employee and liability for compensation shall not apply to the injury, occupational disease, or death to the employee.
  5. If injury or death results to an employee through the deliberate intention of his or her employer to produce such injury or death, the employee or the employee’s dependent as herein defined shall receive the amount provided in this chapter in a lump sum to be used, if desired, to prosecute the employer. The dependents may bring suit against the employer for any amount they desire. If injury or death results to an employee through the deliberate intention of his or her employer to produce such injury or death, the employee or the employee’s dependents may take under this chapter, or in lieu thereof, have a cause of action at law against the employer as if this chapter had not been passed, for such damage so sustained by the employee, his dependents or personal representatives as is recoverable at law. If a suit is brought under this subsection, all right to compensation under this chapter shall thereby be waived as to all persons. If a claim is made for the payment of compensation or any other benefit provided by this chapter, all rights to sue the employer for damages on account of such injury or death shall be waived as to all persons.
  6. Prior to issuing any building permit pursuant to KRS 198B.060(10), every local building official shall require proof of workers’ compensation coverage from the builder before a permit is issued. A person who is exempt under the exception contained in KRS 342.650(2), and any contractor otherwise exempt from this chapter, shall so certify to the local building official, in writing and on a form prescribed by the commissioner, in lieu of providing proof of workers’ compensation coverage.
  7. Every employer subject to this chapter, at its principal office and such other locations where employees customarily report for payroll and personnel matters, shall post a notice stating the name of its workers’ compensation insurance carrier and policy number, setting forth the means to access medical care for injuries, the employee’s obligation to give notice of accidents, and such other matters concerning the employee’s rights under this chapter as may be required by the commissioner so as to afford every employee the opportunity to become informed about the employer’s workers’ compensation program. The format and contents of the notice shall be established by the commissioner through administrative regulation, and copies shall be provided to the employer by its insurance carrier.

shall for the purposes of this section be deemed a contractor, and such other person a subcontractor. This subsection shall not apply to the owner or lessee of land principally used for agriculture.

HISTORY: Enact. Acts 1972, ch. 78, § 1, effective January 1, 1973; 1996 (1st Ex. Sess.), ch. 1, § 27, effective December 12, 1996; 2010, ch. 24, § 1835, effective July 15, 2010; 2018 ch. 40, § 11, effective July 14, 2018.

NOTES TO DECISIONS

Analysis

  1. In General.
  2. Constitutionality.
  3. Purpose.
  4. Construction.
  5. Governmental Employers.
  6. Contractors.
  7. —Principal Contractor.
  8. — Premises Owner As.
  9. —Subcontractors.
  10. Parent and Subsidiary.
  11. Employees.
  12. — Severance of Relationship.
  13. — Corporate Officers.
  14. — Evidence of Relationship.
  15. — Temporary Workers.
  16. Accident.
  17. Traumatic Injury.
  18. — Heat Stroke.
  19. — Heart Attack.
  20. — Neurosis.
  21. — Preexisting Disease.
  22. — — Aggravation.
  23. Multiple Injuries.
  24. Complications Arising from Injury.
  25. Condition as a Result of Injury.
  26. Disease.
  27. — Preexisting Disease.
  28. — — Compensable.
  29. — Evidence.
  30. Arising out of and in the Course of Employment.
  31. — Causal Relationship.
  32. — Injury Within Contemplation.
  33. — — Mining.
  34. — — Electric Shock.
  35. — — Lightning.
  36. — — Peace Officers.
  37. — — Falls.
  38. — — Herniated Disc.
  39. — — Heart Attack.
  40. — — Inhalation of Gases.
  41. — Injury on way to or from Work.
  42. — — Going and Coming Rule.
  43. — — Transportation Furnished by Employer.
  44. — — Operating Premises.
  45. — Accident Occurring on Public Way.
  46. — Travel for Benefit of Employer.
  47. — Risks of the Street.
  48. — Employment Requiring Travel.
  49. — Injury on Premises While Not at Work.
  50. — Injury While Off Work.
  51. — Deviation from Employment.
  52. — Rescue of Fellow Employees.
  53. — Injury by Fellow Employee.
  54. — Employee Engaged in Business of Employer and Self.
  55. — Acts for Employee’s Benefit.
  56. — Furnishing Safe Place to Work.
  57. — Horseplay.
  58. — Murder.
  59. — Assault.
  60. —Intoxication.
  61. — Intentional Injury.
  62. — — Suicide.
  63. — Wilful Misconduct.
  64. — — Negligence.
  65. — — Violation of Safety Rules.
  66. — Evidence.
  67. — Injury Within Scope of Employment.
  68. — Injury Not Within Scope of Employment.
  69. Compensation from Special Fund.
  70. Claimant Receiving Unemployment Compensation.
  71. Action for Retaliatory Discharge.
  72. Appeal.
1. In General.

Subsection (1) of this section and subdivision (1) of KRS 342.620 (now KRS 342.0011 ) plainly make a work-related harmful change in the human organism a compensable injury with the employer liable for payment of any compensation due. Land v. Burden, 626 S.W.2d 221, 1981 Ky. App. LEXIS 307 (Ky. Ct. App. 1981).

2. Constitutionality.

Employee’s consent to the Kentucky Workers’ Compensation Act negated any argument that the application of KRS 342.610 and 342.690 was unconstitutional under the jural rights doctrine. Rehm v. Navistar Int'l, 2005 Ky. App. LEXIS 48 (Ky. Ct. App. Feb. 25, 2005), aff'd in part and rev'd in part, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

3. Purpose.

Purpose of change in Workers’ Compensation Law expanding coverage to nontraumatic injuries was to expand the injury element and not the employment element of a workers’ compensation claim. Seventh Street Road Tobacco Warehouse v. Stillwell, 550 S.W.2d 469, 1976 Ky. LEXIS 155 ( Ky. 1976 ).

This section was enacted to discourage owners and contractors from hiring financially irresponsible subcontractors and thus eliminate workers’ compensation liability. Tom Ballard Co. v. Blevins, 614 S.W.2d 247, 1980 Ky. App. LEXIS 430 (Ky. Ct. App. 1980).

The purpose of the provision of this section that a contractor is liable for compensation benefits to an employee if a subcontractor who does not secure compensation benefits is to prevent subcontracting to irresponsible people. Fireman's Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 1986 Ky. LEXIS 239 ( Ky. 1986 ).

4. Construction.

The liberal construction mandate of KRS 446.080 is particularly applicable to the Workers’ Compensation Act which is often cited as an act to be liberally construed to effect its remedial purpose; all presumptions will be indulged in favor of those for whose protection the enactment was made. Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 1983 Ky. LEXIS 305 ( Ky. 1983 ), limited, Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 1995 Ky. LEXIS 48 ( Ky. 1995 ), limited, Maiden v. Clark Invs., 1995 Ky. App. LEXIS 179 (Ky. Ct. App. Oct. 20, 1995).

KRS 342.316(3)(b) is not in conflict with KRS 342.610(1), 342.640(1), and 342.690(1)Mullins v. Manning Coal Corp., 938 S.W.2d 260, 1997 Ky. LEXIS 1 (Ky.), cert. denied, 521 U.S. 1119, 117 S. Ct. 2511, 138 L. Ed. 2d 1014, 1997 U.S. LEXIS 4077 (U.S. 1997).

Entitlement to protection under KRS 342.610 and 342.690 is strictly construed. Rehm v. Navistar Int'l, 2005 Ky. App. LEXIS 48 (Ky. Ct. App. Feb. 25, 2005), aff'd in part and rev'd in part, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

KRS 342.610(2)(b) refers to work that is customary, usual, normal, or performed repeatedly and that the business or a similar business would perform or be expected to perform with employees. GE v. Cain, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

Case law requiring that an employee's cumulative injury be apportioned to the employer based upon the percentage of disability attributable to work performed by the employee while in the employ of that employer did not apply to the instant case where that case law had been decided under a different version of Ky. Rev. Stat. Ann. ch. 342, and nothing in the version of chapter 342 in effect at the time of the claim so limited the employer's liability. Hale v. CDR Operations, Inc., 474 S.W.3d 129, 2015 Ky. LEXIS 1935 ( Ky. 2015 ).

5. Governmental Employers.

Employees of the Board of Education and the city who filed claims after January 1, 1973, for compensation with the Workers’ Compensation Board for injuries suffered while in the course of employment were not entitled to relief under the Workers’ Compensation Act against their employers in view of the constitutional interpretation made in Thomas v. Crummles Creek Coal Co., 297 Ky. 210 , 179 S.W.2d 882, 1944 Ky. LEXIS 711 ( Ky. 1944 ), and Maggard v. International Harvester Co., 508 S.W.2d 777, 1974 Ky. LEXIS 632 ( Ky. 1974 ); Vater v. Newport Board of Education, 511 S.W.2d 670, 1974 Ky. LEXIS 506 ( Ky. 1974 ).

Where employee was hired under the CETA program with his hours set by city and all the particulars of his work duties directed by the city, but with his pay coming from the Cabinet for Human Resources, although the city indirectly controlled his wages through bi-monthly reports forwarded to the cabinet, the employee was to be treated just as any other city employee, and the city would be liable for compensation payments. Franklin v. Department for Human Resources, 581 S.W.2d 358, 1979 Ky. App. LEXIS 409 (Ky. Ct. App. 1979).

State employees of the Kentucky Department of Transportation were not entitled to “up the ladder” immunity from liability in an action filed by the deceased construction worker, pursuant to KRS 342.690 , because the Department could not be considered as a contractor under KRS 342.610 since government agencies were not included in the definition of “persons” under KRS 342.0011 . Hensley v. Davis, 2006 Ky. App. LEXIS 304 (Ky. Ct. App.), sub. op., 2006 Ky. App. Unpub. LEXIS 612 (Ky. Ct. App. Oct. 6, 2006), aff'd, 256 S.W.3d 16, 2008 Ky. LEXIS 149 ( Ky. 2008 ).

City was not liable as a contractor under KRS 342.610(2) for the injury a compensation benefits claimant sustained during the course of his employment with an uninsured employer because the city was not a “person” for the purposes of KRS Chapter 342 and was not liable under KRS 342.610(2) as an employer; a governmental entity is not a “person.” Uninsured Employers' Fund v. City of Salyersville, 260 S.W.3d 773, 2008 Ky. LEXIS 148 ( Ky. 2008 ).

KRS 342.630 considers persons and governmental entities to be separate classes of employers subject to KRS Chapter 342, and although KRS 342.630 requires both classes to provide workers’ compensation coverage to direct employees, KRS 342.610(2) considers only persons to be contractors liable for “up-the-ladder” claims. Uninsured Employers' Fund v. City of Salyersville, 260 S.W.3d 773, 2008 Ky. LEXIS 148 ( Ky. 2008 ).

Because KRS 342.610(2) considers only persons to be contractors and does not hold a governmental entity liable as the “up-the-ladder” employer, KRS 342.690(1) does not entitle a governmental entity or its employees to an exclusive remedy defense on that basis. Davis v. Hensley, 256 S.W.3d 16, 2008 Ky. LEXIS 149 ( Ky. 2008 ).

United States was entitled to up-the-ladder immunity under Kentucky’s Workers’ Compensation law in a Federal Tort Claims Act (FTCA) action arising out of plaintiff’s injuries while mowing grass at an army base; plaintiff was entitled only to workers’ compensation benefits received from his direct employer. Because the plaintiff’s work, as maintenance activities, was a regular and recurrent part of the business of the base, the United States was considered a contractor for purposes of applying up-the-ladder immunity. Himes v. United States, 645 F.3d 771, 2011 FED App. 0187P, 2011 U.S. App. LEXIS 14293 (6th Cir. Ky. 2011 ).

6. Contractors.

An independent contractor is not insurable under the Workers’ Compensation Law for injuries to himself. Aetna Casualty & Surety Co. v. Petty, 282 Ky. 716 , 140 S.W.2d 397, 1940 Ky. LEXIS 259 ( Ky. 1940 ) (decided under prior law).

Fact that decedent was carried on payroll as commission salesman was evidence that he was employee and not independent contractor. Browns, Bell & Cowgill v. Soper, 287 Ky. 17 , 152 S.W.2d 278, 1941 Ky. LEXIS 501 ( Ky. 1941 ) (decided under prior law).

Status of independent contractor cannot be established by proof that principal did not exercise control, the test being whether it could have exercised control. Browns, Bell & Cowgill v. Soper, 287 Ky. 17 , 152 S.W.2d 278, 1941 Ky. LEXIS 501 ( Ky. 1941 ) (decided under prior law).

Owner-operator of tractor under written contract with common carrier to transport latter’s trailers was not independent contractor where carrier retained final say on whom owner-operator could hire and fire, told him he was covered by workers’ compensation insurance and, though deducting premiums therefor from his checks, actually paid for the coverage. Travelers Ins. Co. v. Hayes, 410 S.W.2d 147, 1966 Ky. LEXIS 32 ( Ky. 1966 ) (decided under prior law).

Where the claimant was a professional roofer and used his own tools in a roofing repair job he was hired to do, he was an independent contractor and not an employee for purposes of compensation for a fall which occurred while he was working on the roofing job. Chambers v. Wooten's Iga Foodliner, 436 S.W.2d 265, 1969 Ky. LEXIS 470 ( Ky. 1969 ) (decided under prior law).

In determining whether one is an employee or independent contractor, the court will look to the matters of extent of control, whether the one employed is engaged in a distinct occupation or business, the type of business with reference to whether it is usually performed in the locality under the direction of the employer, or by a specialist without supervision, the skill required in the particular occupation, whether employer or worker supplies the instrumentalities, tools, and place of work, the duration of the employment, the method of payment, whether the work is part of the regular business of the employer, and whether the parties believe they are creating the relationship of master and servant. Carter v. Martin Petroleum Co., 460 S.W.2d 810, 1970 Ky. LEXIS 591 ( Ky. 1970 ) (decided under prior law).

The approach to be used in determining the relation of employer-employee under the Workers’ Compensation Act, vis-a-vis the relation of independent contractor, is a “more liberal construction favoring the employee.” Carter v. Martin Petroleum Co., 460 S.W.2d 810, 1970 Ky. LEXIS 591 ( Ky. 1970 ) (decided under prior law).

Where the deceased rented a service station from the defendant and operated it while holding himself out as owner in the advertising and operating the station without supervision, he was determined to be an independent contractor even though there were isolated instances of control by the defendant. Carter v. Martin Petroleum Co., 460 S.W.2d 810, 1970 Ky. LEXIS 591 ( Ky. 1970 ) (decided under prior law).

When an owner has work performed by an independent contractor the employees of the independent contractor are not employees of the owner and ordinarily the owner has no workers’ compensation liability for a job-related disability; likewise the employees of a subcontractor are not the employees of the contractor. Elkhorn-Hazard Coal Land Corp. v. Taylor, 539 S.W.2d 101, 1976 Ky. LEXIS 43 ( Ky. 1976 ).

Contractors need not also be employers under KRS 342.630 in order to be liable, since they will be treated in effect as the employer of an injured claimant for the purposes of the Workers' Compensation Act. Mills v. Arthur Constr. Co., 559 S.W.2d 742, 1977 Ky. App. LEXIS 873 (Ky. Ct. App. 1977).

Where a claimant was injured while in the employment of a subcontractor and the contractor had no immediate employees and was not therefore an employer under KRS 342.630 , the contractor could nonetheless be held liable to the claimant. Mills v. Arthur Constr. Co., 559 S.W.2d 742, 1977 Ky. App. LEXIS 873 (Ky. Ct. App. 1977).

One who contracts with another to have work performed consisting of the removal of minerals shall be deemed a contractor. Upper Elkhorn Coal Co. v. Thornberry, 564 S.W.2d 842, 1977 Ky. App. LEXIS 909 (Ky. Ct. App. 1977).

Where evidence showed that lease of mineral rights was entered into by officers acting for the benefit of a coal company and that contract with a second mining company to remove coal was also for the benefit of such company, the company was a contractor and was liable for benefits for the death of an employee of the second company. Upper Elkhorn Coal Co. v. Thornberry, 564 S.W.2d 842, 1977 Ky. App. LEXIS 909 (Ky. Ct. App. 1977).

Where defendant coal mining company hired individual to haul coal in trucks which he owned and paid all of the cost of hauling the coal, defendant was liable for payment of workers’ compensation where truck driver was killed while returning from delivery, since under subsection (2) of this section, the hauling of coal was a regular or recurrent part of its business and truck owner had not secured workers’ compensation insurance of his own to cover decedent driver; moreover, defendant was liable even though truck driver was not actually its employee. Tom Ballard Co. v. Blevins, 614 S.W.2d 247, 1980 Ky. App. LEXIS 430 (Ky. Ct. App. 1980).

Although the employee of a subcontractor was killed as a result of a violation of safety regulations by the general contractor, his widow was not entitled to recover the penalty imposed by KRS 342.165 from the general contractor since the general contractor was not the decedent’s employer as required under KRS 342.165 , and the subcontractor had obtained compensation insurance which precluded the general contractor from being held liable. Ernest Simpson Constr. Co. v. Conn, 625 S.W.2d 850, 1981 Ky. LEXIS 310 ( Ky. 1981 ).

A personal injury action by a construction company employee against a gas pipeline company, which contracted with the construction company for the hydrostatic testing of natural gas pipelines, was barred on the grounds that a master/servant relationship existed between the pipeline company and the plaintiff, where the contract labeled the construction company as an independent contractor, but where pipeline company inspectors controlled the mode, manner and details of the operation at the time of the explosion which injured the plaintiff. Brown v. Tennessee Gas Pipeline Co., 623 F.2d 450, 1980 U.S. App. LEXIS 14497 (6th Cir. 1980) (decided under prior law).

The fact that the general relationship between a gas pipeline company and a construction company was one of owner/independent contractor did not preclude a finding that at some specific point a master/servant relationship existed between the pipeline company and the construction company’s employees. Brown v. Tennessee Gas Pipeline Co., 623 F.2d 450, 1980 U.S. App. LEXIS 14497 (6th Cir. 1980) (decided under prior law).

While normally a corporation which contracted with an independent contractor to do work on the corporation’s own premises was considered a third party rather than an employer for the purposes of workers’ compensation, the owner could become the “employer” of its contractor’s employees if it exercised control as to the means, or as to the mode, manner and details of the performance of the work. Brown v. Tennessee Gas Pipeline Co., 623 F.2d 450, 1980 U.S. App. LEXIS 14497 (6th Cir. 1980) (decided under prior law).

Where chemical company did not engage labor management firm which employed injury party to assist in the performance of the work or the completion of the project which the chemical company had undertaken to perform for another, chemical company was not a contractor within the meaning of subsection (2) of this section. M.J. Daly Co. v. Varney, 695 S.W.2d 400, 1985 Ky. LEXIS 226 ( Ky. 1985 ).

A contractor has no liability in tort to an injured employee of a subcontractor. Because the contractor is liable under subsection (2) of this section for the worker’s compensation benefits to the employee if the subcontractor, his employer, has not secured those benefits, that potential liability for worker’s compensation benefits relieves the contractor from tort liability under KRS 342.690 . Fireman's Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 1986 Ky. LEXIS 239 ( Ky. 1986 ).

A person who engages another to perform a part of the work which is a recurrent part of his business, trade, or occupation is a contractor; even though he may never perform that particular job with his own employees, he is still a contractor if the job is one that is usually a regular or recurrent part of his trade or occupation. Fireman's Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 1986 Ky. LEXIS 239 ( Ky. 1986 ).

Where the buyer contracted with the seller to rebrick the tank furnace, and the firebricks had to be replaced periodically as an ordinary part of plant maintenance, the buyer was contracting to “have work performed of a kind which is a regular or recurrent part” of the buyer’s business; thus, the buyer was thus a contractor under subsection (2) of this section and was immune from tort liability to injured brick mason. Granus v. North American Philips Lighting Corp., 821 F.2d 1253, 1987 U.S. App. LEXIS 8186 (6th Cir. Ky. 1987 ).

Negligence and breach of contract claims brought against electric company by plaintiff, injured while performing emissions testing for his employer who was under contract to perform such services for electric company, were barred by the exclusive remedy provisions of the Kentucky Workers’ Compensation Act, KRS 342.690 . Emissions testing, required by the EPA, was a “regular and recurrent” part of electric company’s business and made company a contractor of plaintiff’s employer and therefore relieved of tort liability. Daniels v. Louisville Gas & Elec. Co., 933 S.W.2d 821, 1996 Ky. App. LEXIS 104 (Ky. Ct. App. 1996).

Because mineral company contracted to have work performed by a contract labor company employee and the work performed was a regular and recurring part of mineral company’s business, under the clear statutory definition, mineral company was a “contractor” within the meaning of the Kentucky Workers’ Compensation Act and the contract labor company was a “subcontractor” and therefore, injured employee was barred from maintaining an action in tort against mineral company. M.J. Daly Co. v. Varney, 695 S.W.2d 400, 1985 Ky. LEXIS 226 (1985) was overruled by implication in Fireman’s Fund Insurance Co. v. Sherman & Fletcher, 705 S.W.2d 459, 1986 Ky. LEXIS 239 (1986). United States Fid. & Guar. Co. v. Technical Minerals, 934 S.W.2d 266, 1996 Ky. LEXIS 117 ( Ky. 1996 ).

The defendant, which contracted with a third party, which subcontracted with the claimant’s employer, was a contractor for purposes of the statute and, therefore, was entitled to immunity from claims for injuries sustained by the claimant while operating a vehicle on its premises as the defendant’s regular business of the assembly of vehicles included the distribution of the vehicles thus assembled, the defendant provided for transportation of its products via the railway adjacent to the assembly plant, and the claimant was injured while working as a rail loader. Sharp v. Ford Motor Co., 66 F. Supp. 2d 867, 1998 U.S. Dist. LEXIS 22658 (W.D. Ky. 1998 ).

For purposes of Kentucky Workers’ Compensation law, defendant was a contractor and could not be held liable in tort for plaintiff’s injuries. Thompson v. Budd Co., 199 F.3d 799, 1999 FED App. 0412P, 1999 U.S. App. LEXIS 32121 (6th Cir. Ky. 1999 ), cert. denied, 530 U.S. 1229, 120 S. Ct. 2659, 147 L. Ed. 2d 273, 2000 U.S. LEXIS 4013 (U.S. 2000).

For purposes of Kentucky’s Workers’ Compensation Act, one company was not a contractor, under KRS 342.610(2), in hiring a second company to remove a system at the first company’s plant, given the large scale and infrequency of system replacement, and the plain meaning of the words “regular” and “recurring.” Gesler v. Ford Motor Co., 185 F. Supp. 2d 724, 2001 U.S. Dist. LEXIS 23493 (W.D. Ky. 2001 ).

In holding that defendant vehicle producer did not have tort immunity, pursuant to KRS 342.690 , from a suit brought by plaintiff employee, whose employer was a component parts manufacturer for the producer, a federal district court predicts that the Kentucky Supreme Court will adhere to the majority view that a mere purchaser of goods is not a statutory contractor, as defined by KRS 342.610(2), for the purposes of the Kentucky Workers’ Compensation Act, absent special circumstances. Davis v. Ford Motor Co., 244 F. Supp. 2d 784, 2003 U.S. Dist. LEXIS 1584 (W.D. Ky. 2003 ).

As the employee’s employer, who was a subcontractor, properly procured workers’ compensation insurance for its employee, a contractor was immune from civil liability to the employee for the injuries the employee sustained while unloading canisters at contractor’s warehouse pursuant to KRS 342.610(2), so the contractor’s motion for summary judgment was granted. Waterbury v. Anheuser-Busch, Inc., 2003 U.S. Dist. LEXIS 2639 (W.D. Ky. Feb. 24, 2003).

Construction company was a contractor to the employer on a highway project, and thus the exclusivity statute, KRS 342.690 , precluded the worker’s common law negligence suit against the construction company for work related injuries; the worker failed to present any affirmative evidence showing that a genuine issue of material fact existed regarding whether the construction company was a contractor, and summary judgment in favor of the construction company was affirmed. Ramler v. Spartan Constr., Inc., 2003 Ky. App. Unpub. LEXIS 880 (Ky. Ct. App. Sept. 5, 2003).

Where the injured party was injured while performing work for the employer, who had been hired by the retailer and subsidiary to perform work regularly performed as a part of the retailer’s business, the trial court properly granted summary judgment pursuant to CR 56 in favor of the retailer and subsidiary in the injured party’s negligence action; the retailer was a contractor and the employer was a subcontractor under KRS 342.610(2), and as a result, the retailer and subsidiary were liable for workers’ compensation under KRS 342.700(2) and 342.690(1). Wright v. Dolgencorp, Inc., 161 S.W.3d 341, 2004 Ky. App. LEXIS 280 (Ky. Ct. App. 2004).

Summary judgment was properly granted to 16 contractors in a premises liability and negligence case based on a contractor’s employee being exposed to asbestos because “up-the-ladder” immunity applied under KRS 342.610 and 342.690 ; the work performed on removing and installing machinery was a regular or recurrent part of the businesses. Rehm v. Navistar Int'l, 2005 Ky. App. LEXIS 48 (Ky. Ct. App. Feb. 25, 2005), aff'd in part and rev'd in part, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

In a case involving premises liability and negligence, a trial court did not err by allowing several parties to amend their pleadings to raise the defense of “up-the-ladder” immunity because there was no prejudice; there was ample notice of the defense and time to respond. Rehm v. Navistar Int'l, 2005 Ky. App. LEXIS 48 (Ky. Ct. App. Feb. 25, 2005), aff'd in part and rev'd in part, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

In a case arising out of premises liability and negligence, a court decided the issue of “regular and recurrent” under KRS 342.610(2) as an issue of law because there was no dispute about the type of business engaged in and/or the type of work the employee performed for a company. Rehm v. Navistar Int'l, 2005 Ky. App. LEXIS 48 (Ky. Ct. App. Feb. 25, 2005), aff'd in part and rev'd in part, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

Where the truck driver had already received workers’ compensation benefits from his employer, the district court’s grant of summary judgment in favor of an auto maker was affirmed. The auto maker was immune from liability under KRS 342.690 because it was a contractor as defined by KRS 342.610 and because its subcontractor, the driver’s employer, secured workers’ compensation benefits for the driver. Giles v. Ford Motor Co., 126 Fed. Appx. 293, 2005 U.S. App. LEXIS 5638 (6th Cir. Ky. 2005 ).

Where a worker in a kiosk located in a department store sued the store for injuries sustained when a ceiling tile fell on her, and where the worker received workers’ compensation benefits for those injuries, the store was not immune from tort liability under the exclusive remedy provisions of the workers’ compensation act because the store’s relationship with the kiosk was that of landlord tenant, rather than contractor/subcontractor under KRS 342.610(2)(b) where: (1) the licensing agreement between the store and the kiosk operator did not set up a single-integrated business or enterprise, but created a clear distinction between the store and the kiosk operator, (2) the kiosk operator leased the kiosk from the store for a fixed monthly rental and did not share its revenues, and (3) it operated the kiosk with its own inventory and employees. Smith v. Wal-Mart Stores E., L.P., 2005 U.S. Dist. LEXIS 20232 (W.D. Ky. Sept. 14, 2005).

If the employer was a “contractor” under KRS 342.610(2), it would not be liable in tort to its employee because he had already received workers’ compensation benefits through his immediate employer. Franke v. Ford Motor Co., 398 F. Supp. 2d 833, 2005 U.S. Dist. LEXIS 26259 (W.D. Ky. 2005 ).

If the installation of the particular type of lift table that the employee installed was a “regular and recurrent” part of the employer’s work of the trade, business, occupation or profession, under KRS 342.610(2)(b), then the employer would be entitled to immunity as a contractor under KRS 342.690 . Franke v. Ford Motor Co., 398 F. Supp. 2d 833, 2005 U.S. Dist. LEXIS 26259 (W.D. Ky. 2005 ).

Even if the employee was injured on the first installation of a larger than normal, hydraulic lift table in a deeper than normal pit, that does not determine whether such installation was “regular and recurrent” work for the employer under KRS 342.610(2). Franke v. Ford Motor Co., 398 F. Supp. 2d 833, 2005 U.S. Dist. LEXIS 26259 (W.D. Ky. 2005 ).

Installation of a lift table in question, although unique in certain ways, was a regular and recurrent part of the employer’s business within the meaning of KRS 342.610(2); therefore, the employer was a “contractor” under KRS 342.690(1) and was entitled to immunity from tort liability as provided in that section. Franke v. Ford Motor Co., 398 F. Supp. 2d 833, 2005 U.S. Dist. LEXIS 26259 (W.D. Ky. 2005 ).

Because the evidence did not compel a finding that a worker was an employee of a contractor, and because there was no error or due process violation when a different administrative law judge ruled on the worker’s KRS 342.281 petition for reconsideration, the worker’s claim for workers’ compensation benefits was properly dismissed. Ranck v. Gray, 2005 Ky. App. LEXIS 215 (Ky. Ct. App.), sub. op., 2005 Ky. App. Unpub. LEXIS 995 (Ky. Ct. App. Sept. 30, 2005).

Under KRS 342.610 and 342.690 , an “up-the-ladder” contractor was properly granted summary judgment in a negligence suit filed by its subcontractor’s injured worker, even though it did not prove it had workers’ compensation insurance covering the worker, because it proved the subcontractor had secured such coverage. Pennington v. Jenkins-Essex Constr., Inc., 238 S.W.3d 660, 2006 Ky. App. LEXIS 327 (Ky. Ct. App. 2006).

If a party is a “contractor” as defined by KRS 342.610 , it has no liability in tort to an injured employee of a subcontractor if it proves that the subcontractor had secured workers’ compensation coverage for the employee. Pennington v. Jenkins-Essex Constr., Inc., 238 S.W.3d 660, 2006 Ky. App. LEXIS 327 (Ky. Ct. App. 2006).

Where a painter employed by a subcontractor was injured at work, as it was uncontested that painting was a part of 90-95 percent of the general contractor’s projects, the trial court properly found that it was a “contractor” as defined by KRS 342.610(2); the fact that it hired subcontractors to do the painting was immaterial. Pennington v. Jenkins-Essex Constr., Inc., 238 S.W.3d 660, 2006 Ky. App. LEXIS 327 (Ky. Ct. App. 2006).

Where a worker employed by a third party contractor sought workers’ compensation benefits for injuries sustained while working on a city sewer project, because the only prior work of this nature was done in 1940’ s or 1950’ s, the work was not “regular” or “recurrent” and an order imposing up the ladder liability on the city under KRS 342.610 was error. City of Salyersville v. Smith, 2006 Ky. App. LEXIS 348 (Ky. Ct. App. Dec. 1, 2006), aff'd, 260 S.W.3d 773, 2008 Ky. LEXIS 148 ( Ky. 2008 ).

Because a contract for the removal of timber from the owner’s property facilitated the removal of coal from the property, the arrangement fit the description of a contractor in KRS 342.610(2)(a); accordingly, the owner was an up-the-ladder contractor who was subject to liability for the death of the subcontractor’s employee. R.O. Giles Enters. v. Mills, 275 S.W.3d 211, 2008 Ky. App. LEXIS 299 (Ky. Ct. App. 2008).

In an injured worker’s personal injury suit against a subcontractor, the contractor-premises owner was entitled to summary judgment as no formal written contract between the injured worker’s direct employer and the contractor was essential to establish up-the-ladder immunity under KRS 342.690(1) against the worker’s tort claims. Beaver v. Oakley, 279 S.W.3d 527, 2009 Ky. LEXIS 74 ( Ky. 2009 ).

Because a company which had a delivery agreement with an injured man’s employer was a “contractor” under KRS 342.610(2), it was entitled to “exclusive remedy” immunity under KRS 342.690 in the injured employee’s negligence action against it after recovering workers’ compensation benefits from the employer’s carrier. Thornton v. Carmeuse Lime Sales Corp., 346 S.W.3d 297, 2010 Ky. App. LEXIS 150 (Ky. Ct. App. 2010).

Nothing in KRS ch. 342 precludes a franchisor who meets the definition found in KRS 342.610(2) from being considered a contractor. Doctors' Assocs. v. Uninsured Employers' Fund, 364 S.W.3d 88, 2011 Ky. LEXIS 166 ( Ky. 2011 ).

Franchisor was not a contractor under KRS 342.610(2) where it did not control the day to day activities of its sandwich shop franchisees and where the franchisor was clearly in the business of developing franchises for the purpose of securing royalties rather than actually operating sandwich shops. Doctors' Assocs. v. Uninsured Employers' Fund, 364 S.W.3d 88, 2011 Ky. LEXIS 166 ( Ky. 2011 ).

Restoring electrical power was a regular and recurrent part of a rural electric cooperative’s business under KRS 342.610(2)(b). Thus, the cooperative was a contractor under KRS 342.690(1) and was entitled to workers’ compensation immunity with regard to the accidental death of a subcontractor’s employee while restoring power in an ice storm; a federal emergency declaration did not alter the regular and recurrent nature of the work. Reichwein v. Jackson Purchase Energy Corp., 397 S.W.3d 413, 2012 Ky. App. LEXIS 185 (Ky. Ct. App. 2012).

Court of appeals properly affirmed of the Workers’ Compensation Board’s order remanding the case to the Administrative Law Judge (ALJ) for additional findings of fact reconciling the proof in the proceeding with a prior case because the ALJ failed to analyze the significant factual difference between the two cases, which were central to the analysis of the contested issue of whether a company met the “regular or recurrent” statutory requirement. Tryon Trucking, Inc. v. Medlin, 586 S.W.3d 233, 2019 Ky. LEXIS 378 ( Ky. 2019 ).

7. —Principal Contractor.

Where owner undertook to supervise the construction with its own personnel, hiring independent contractors to perform specialized functions, such owner was not a “principal contractor” within the meaning of law that provided for the liability of contractors and subcontractors so as to impose compensation liability to the exclusion of common-law liability upon the owner in an action by the subcontractor’s employee. Bright v. Reynolds Metals Co., 490 S.W.2d 474, 1973 Ky. LEXIS 627 ( Ky. 1973 ) (decided under prior law).

Workers’ compensation claimant’s negligence and premises liability claims against a pork processing facility operator were properly dismissed where the sanitation services the employer performed at the facility were recurrent, regular, and required by law, and thus, the operator was entitled to up-the-ladder immunity. Cabrera v. JBS USA, LLC, 568 S.W.3d 865, 2019 Ky. App. LEXIS 17 (Ky. Ct. App. 2019).

8. — Premises Owner As.

Premises owners are “contractors” as defined in KRS 342.610(2)(b), and are deemed to be the statutory, or “up-the-ladder,” employers of individuals who are injured while working on their premises and are liable for workers’ compensation benefits unless the individuals’ immediate employers of the workers have provided workers’ compensation coverage; they also have exclusive remedy immunity from tort claims whether or not the immediate employers provided coverage. GE v. Cain, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

As used in KRS 342.610(2)(b) with regard to a premises owner, “regular” means that the type of work performed is a customary, usual or normal part of the premises owner’s trade, business, occupation, or profession, including work assumed by contract or required by law. “Recurrent” means that the work is repeated, though not with the preciseness of a clock. GE v. Cain, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

When characterizing a project as being routine repair or maintenance versus a capital improvement when considering liability for workers’ compensation, a relevant consideration is whether the premises owner capitalized and depreciated its cost for tax purposes or deducted its cost as a business expense as capitalized costs tend to indicate that the business was not the injured worker’s statutory employer, while expensed costs tend to indicate that the owner was the statutory employer, but that factor is not conclusive because even projects performed entirely with a premises owner’s workforce may be capitalized depending on their character. GE v. Cain, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

In a workers' compensation case, a land developer was not a benefit claimant's statutory employer because building homes was not typically a regular or recurrent part of the work of the business of land development; moreover, the land developer was not involved in the construction of the home and could not have been held liable as an up-the-ladder employer. The homeowner was also not liable as the employer because she had no experience building homes, was living in Mexico at the time of construction, and did not provide material, tools, or workers. Uninsured Emplr.' Fund v. Poplar Brook Dev., 2015 Ky. App. LEXIS 145 (Ky. Ct. App. Oct. 9, 2015), aff'd, 2016 Ky. Unpub. LEXIS 72 (Ky. Sept. 22, 2016).

9. —Subcontractors.

Subcontractors need not also be employers under KRS 342.630 in order to be liable, since they will be treated in effect as the employer of an injured claimant for purposes of the Workers' Compensation Act. Mills v. Arthur Constr. Co., 559 S.W.2d 742, 1977 Ky. App. LEXIS 873 (Ky. Ct. App. 1977).

To have benefit of the immunity provision of this section, subcontractor would have to demonstrate to the satisfaction of the trier of fact that providing rough carpentry labor was a regular or recurrent part of its business. Goldsmith v. Allied Bldg. Components, Inc., 833 S.W.2d 378, 1992 Ky. LEXIS 99 ( Ky. 1992 ).

Where defendant/subcontractor asserted the “up the ladder” defense against construction worker/claimant, the contention was at odds with many of the documents and the admissions made by subcontractor and with other evidence. As such, there was a material issue of fact and reversal was required. Goldsmith v. Allied Bldg. Components, Inc., 833 S.W.2d 378, 1992 Ky. LEXIS 99 ( Ky. 1992 ).

Where subcontractor employee was injured while collecting solid waste from the hospital, because disposal of solid waste was not a regular or recurrent part of the hospital’s business, the hospital had no potential liability for the payment of workers’ compensation benefits to the employee and, therefore, was not immune from a common law action for damages for personal injuries sustained by the subcontractor employee. Waggoner v. Woodland Dialysis Facility, 1999 Ky. App. LEXIS 137 (Ky. Ct. App. Oct. 29, 1999).

Contractor and its parent company met each requirement for immunity from suit under Kentucky's Workers' Compensation Act based on the exclusivity of the remedy where (1) they hired plaintiff's employer to transport and deliver paper rolls to the contractor's factory; (2) unloading materials at the factory was a customary, usual, or normal part of the contractor's business; and (3) transportation and delivery or raw paper materials amounted to work that the contractor or similar business would normally perform or expect to perform with its own employees. Black v. Dixie Consumer Prods. LLC, 835 F.3d 579, 2016 FED App. 0213P, 2016 U.S. App. LEXIS 15924 (6th Cir. Ky. 2016 ), cert. denied, 137 S. Ct. 2294, 198 L. Ed. 2d 725, 2017 U.S. LEXIS 4142 (U.S. 2017).

10. Parent and Subsidiary.

The “functional relationship” between a parent corporation and a subsidiary is not a contractual relationship since the exceptions of the parties are not based on mutual promises, consideration or consent, for one party owns and has custody of the other party; consequently, the parent corporation of a mining company should not be characterized as a “contractor” for the mining services of its wholly owned subsidiary for purposes of the tort immunity provisions of the Workers' Compensation Act. Boggs v. Blue Diamond Coal Co., 590 F.2d 655, 1979 U.S. App. LEXIS 17392 (6th Cir. Ky.), cert. denied, 444 U.S. 836, 100 S. Ct. 71, 62 L. Ed. 2d 47, 1979 U.S. LEXIS 2678 (U.S. 1979).

Under Kentucky’s Workers’ Compensation Act a parent corporation is not immune from tort liability to employees of its subsidiary for its own independent acts of negligence; the parent should be liable under customary principles of the common law for harm resulting from its own negligent or reckless conduct. Boggs v. Blue Diamond Coal Co., 590 F.2d 655, 1979 U.S. App. LEXIS 17392 (6th Cir. Ky.), cert. denied, 444 U.S. 836, 100 S. Ct. 71, 62 L. Ed. 2d 47, 1979 U.S. LEXIS 2678 (U.S. 1979).

Wholly-owned subsidiary of a pork processing facility operator was entitled to up-the-ladder immunity where the subsidiary shared the same chief executive officer, the same board of directors, and the same address for its corporate headquarters as the operator, both entities were named insureds in the same policy of workers’ compensation insurance, and the subsidiary was the joint owner and operator of the facility where and when the claimant sustained his injuries. Cabrera v. JBS USA, LLC, 568 S.W.3d 865, 2019 Ky. App. LEXIS 17 (Ky. Ct. App. 2019).

Workers’ compensation claims against a contractor’s subsidiary were remanded where the subsidiary had never argued that it qualified as the claimant’s statutory employer for up-the-ladder immunity purposes, and its status as a subsidiary of the pork processing facility operator was insufficient on its own for immunity purposes. Cabrera v. JBS USA, LLC, 568 S.W.3d 865, 2019 Ky. App. LEXIS 17 (Ky. Ct. App. 2019).

11. Employees.

In the creation of the employer-employee relationship, the law does not require actual and intimate control of the details of the work being performed. Partin-Lambdin Lumber Co. v. Frazier, 308 S.W.2d 792, 1957 Ky. LEXIS 140 ( Ky. 1957 ) (decided under prior law).

The proper legal analysis with regard to whether one is an employee requires consideration of at least four predominant factors: (1) the nature of the work as related to the business generally carried on by the alleged employer; (2) the extent of control exercised by the alleged employer; (3) the professional skill of the alleged employee; and (4) the true intent of the parties. The proper legal conclusions may not be drawn from consideration of one or two of these factors. Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 1991 Ky. LEXIS 22 ( Ky. 1991 ).

12. — Severance of Relationship.

Relationship of master and servant, as a respected highway employee’s right to compensation for injury when struck by car after alighting from truck transporting him from work, was severed when, at instance of employee himself, he was deposited safely from truck on right-hand side of road at point designated and nearly opposite his place of residence. State Highway Com. v. Saylor, 252 Ky. 743 , 68 S.W.2d 26, 1933 Ky. LEXIS 1031 ( Ky. 1933 ) (decided under prior law).

13. — Corporate Officers.

A decedent, who was president and general manager of a corporation, and whose name was carried on the payroll in the same manner as those of other employees, was an employee of the corporation, as he was subject to the superior will and direction of his corporate employer, which had power to remove him by proper action. Mine Service Co. v. Green, 265 S.W.2d 944, 1954 Ky. LEXIS 774 ( Ky. 1954 ) (decided under prior law).

14. — Evidence of Relationship.

Where employer hired team, driver was furnished with team, and employer exercised exclusive control and direction, relation of master and servant existed. Kentucky & West Virginia Gas Co. v. Wireman, 241 Ky. 18 , 43 S.W.2d 183, 1931 Ky. LEXIS 3 ( Ky. 1931 ) (decided under prior law).

Relation of master and servant, test of which is employer’s right to control employee, is essential to compensable injury. W. T. Congleton Co. v. Bradley, 259 Ky. 127 , 81 S.W.2d 912, 1935 Ky. LEXIS 271 ( Ky. 1935 ) (decided under prior law).

The test of the relationship of master and servant or employer and employee is the right of control on the part of the alleged employer. Tackett v. Inland Steel Co., 281 Ky. 313 , 136 S.W.2d 25, 1940 Ky. LEXIS 37 ( Ky. 1940 ) (decided under prior law).

Circumstances that corporation carried compensation insurance on commission salesman, paid premiums based on his commissions, and that he had actually received compensation on previous claim without status as employee being questioned evidence existence of employer-employee relationship. Browns, Bell & Cowgill v. Soper, 287 Ky. 17 , 152 S.W.2d 278, 1941 Ky. LEXIS 501 ( Ky. 1941 ) (decided under prior law).

It is essential that the relations of master and servant exist in order for the compensation law to apply, and the test of its existence is the right of control and the facts of each particular case must be examined to determine whether or not the relation of master and servant existed at the place and time of injury. Louisville & Jefferson County Air Board v. Riddle, 301 Ky. 100 , 190 S.W.2d 1009, 1945 Ky. LEXIS 700 ( Ky. 1945 ) (decided under prior law).

The “right of control” which is of major importance in determining whether or not one person is the employee of another must exist at the time and place of the accident, not at some other time or place. Shephard Elevator Co. v. Thomas, 300 S.W.2d 782, 1957 Ky. LEXIS 469 ( Ky. 1957 ) (decided under prior law).

Worker whose work separating metals required no particular skill, whose work was automatically controlled by the employer by withholding or supplying the scrap to be separated, who did other work by the hour for the employer which work was not extensive, who was furnished a place to work and sometimes tools, and who worked for three (3) years and did not have a fixed termination date was an employee under the Workers’ Compensation Law and not an independent contractor notwithstanding he was paid by the pound of metal separated. Ratliff v. Redmon, 396 S.W.2d 320, 1965 Ky. LEXIS 110 ( Ky. 1965 ) (decided under prior law).

In order for compensation to be payable, there must be a contract of hire between the employer and employee. Loaned employee doctrine does not apply to dispute between employers as to liability for compensation. Rice v. Conley, 414 S.W.2d 138, 1967 Ky. LEXIS 351 ( Ky. 1967 ), amended, 419 S.W.2d 769, 1967 Ky. LEXIS 195 ( Ky. 1967 ) (decided under prior law).

15. — Temporary Workers.

Trial court’s finding that an auction business had up-the ladder immunity in a claim brought by a worker allegedly injured by the negligence of a temporary employee working for the auction business was error because the auction business was a contractor and the temporary service was a subcontractor, and as a contractor, the auction business was liable to the temporary service’s employees for workers’ compensation, but was immune from civil suit by those employees. Johnston v. Labor Ready, Inc., 2007 Ky. App. Unpub. LEXIS 250 (Ky. Ct. App. Apr. 6, 2007), aff'd, 289 S.W.3d 200, 2009 Ky. LEXIS 153 ( Ky. 2009 ).

As KRS 342.615(5) deemed a temporary help service subcontractor to be a temporary employee’s employer, the subcontractor had no potential workers’ compensation liability to an employer’s permanent employees under KRS 342.610 . Labor Ready, Inc. v. Johnston, 289 S.W.3d 200, 2009 Ky. LEXIS 153 ( Ky. 2009 ).

16. Accident.

If an injury is suffered in the course of employment unexpectedly and without design, and can be traced to a definite time, place, and cause, it is an accident within the meaning of the compensation laws. Great Atlantic & Pacific Tea Co. v. Sexton, 242 Ky. 266 , 46 S.W.2d 87, 1932 Ky. LEXIS 254 ( Ky. 1932 ) (decided under prior law).

To be compensable the accident must have some relation to an industrial hazard. Barker v. Eblen Coal Co., 276 S.W.2d 448, 1955 Ky. LEXIS 421 ( Ky. 1955 ) (decided under prior law).

The accident must be one reasonably incident to the employment. Stasel v. American Radiator & Standard Sanitary Corp., 278 S.W.2d 721, 1955 Ky. LEXIS 487 ( Ky. 1955 ) (decided under prior law).

In cases involving internal injuries resulting from exertion, strain, and exposure, the “injury by accident” requirement is satisfied either if the cause was of an accidental character or if the effect was the unexpected result of the employee’s duties. North American Refractories Co. v. Jackson, 346 S.W.2d 10, 1961 Ky. LEXIS 279 ( Ky. 1961 ) (decided under prior law).

If there is medical testimony that the strain of the employee’s work-connected exertions caused him bodily harm, the injury is accidental. North American Refractories Co. v. Jackson, 346 S.W.2d 10, 1961 Ky. LEXIS 279 ( Ky. 1961 ) (decided under prior law).

17. Traumatic Injury.

An internal injury resulting from an external force is a traumatic injury and includes any independent influence or cause external to the body coming into direct contact with, and causing injury to, the physical structures thereof. Great Atlantic & Pacific Tea Co. v. Sexton, 242 Ky. 266 , 46 S.W.2d 87, 1932 Ky. LEXIS 254 ( Ky. 1932 ) (decided under prior law).

Ulcer caused by coal dust lodging in miner’s eye as result of blasting operations, and necessitating removal of eye, is a traumatic injury, and is compensable. Roberts v. Black Mountain Corp., 280 Ky. 266 , 132 S.W.2d 941, 1939 Ky. LEXIS 98 ( Ky. 1939 ) (decided under prior law).

Evidence that employee had had no trouble with eye prior to injury from piece of steel and that, following injury, employee suffered continuous pain and trouble from eye was sufficient to support finding that glaucoma requiring removal of eye ten months after injury was caused by the injury, physicians having testified that glaucoma could result from trauma. In such case, evidence that employee had gotten some small specks of coal in his eye two months before eye was removed did not create such doubt as to which injury caused glaucoma as to require holding that finding of board was not supported by substantial evidence. Glogora Coal Co. v. Boyd, 293 Ky. 610 , 169 S.W.2d 816, 1943 Ky. LEXIS 672 ( Ky. 1943 ), overruled, Carnahan v. Yocom, 526 S.W.2d 301, 1975 Ky. LEXIS 96 ( Ky. 1975 ), overruled in part, Carnahan v. Yocom, 526 S.W.2d 301, 1975 Ky. LEXIS 96 ( Ky. 1975 ), overruled on other grounds, Carnahan v. Yocom, 526 S.W.2d 301, 1975 Ky. LEXIS 96 (Ky. 1975) (decided under prior law).

Where coal miner, “in course of employment,” mistakenly drank acid which resulted in serious burns to his mouth, throat and stomach, the injury was of traumatic origin within meaning of former similar section. Harlan Collieries Co. v. Johnson, 308 Ky. 89 , 212 S.W.2d 540, 1948 Ky. LEXIS 849 ( Ky. 1948 ) (decided under prior law).

The legislature did not intend to limit injuries in the absence of a disease to only those injuries of a traumatic nature. Adams v. Bryant, 274 S.W.2d 791, 1955 Ky. LEXIS 557 (Ky. Ct. App. 1955) (decided under prior law).

Any injury caused by work-connected external force satisfies the requirements of “traumatic.” North American Refractories Co. v. Jackson, 346 S.W.2d 10, 1961 Ky. LEXIS 279 ( Ky. 1961 ) (decided under prior law).

When the responsive effort demanded of an employee’s physical mechanism in order to do his work contributes to a seizure that would not have occurred at that time except for that effort, however easy and routine it may be, the resulting disability is in some degree attributable to the work and is compensable. Johnson v. Stone, 357 S.W.2d 844, 1962 Ky. LEXIS 144 ( Ky. 1962 ) (decided under prior law).

Where the claimant’s injury was not of appreciable proportions, and he had returned to his regular employment, he was not entitled to any benefits for permanent partial disability. Dane Sheet Metal, Inc. v. Johnson, 565 S.W.2d 164, 1978 Ky. App. LEXIS 507 (Ky. Ct. App. 1978).

While injury and occupational disease are treated in the same manner by the statutes, they are entirely separate phenomena; traumatic injuries occur suddenly and usually result in abrupt cessation of work while occupational diseases progress gradually and it is customarily difficult to determine at what point work must cease; when traumatic injuries and ripening of occupational disease occur simultaneously, it is the traumatic injury which causes the claimant to cease work on any particular day. Peabody Coal Co. v. Burks, 568 S.W.2d 50, 1978 Ky. App. LEXIS 545 (Ky. Ct. App. 1978).

18. — Heat Stroke.

Employee’s death of “heat stroke” brought on by pushing a wheelbarrow was not due to traumatic injury by accident, and therefore was not compensable. Smith v. Standard Sanitary Mfg. Co., 211 Ky. 454 , 277 S.W. 806, 1925 Ky. LEXIS 898 ( Ky. 1925 ), limited, Hoosier Engineering Co. v. Sparks, 302 Ky. 375 , 194 S.W.2d 843, 1946 Ky. LEXIS 683 ( Ky. 1946 ) (decided under prior law).

Evidence that employee who died from heat stroke had been working near molten metal heated to about 2,800° Fahrenheit, and that his face was burned, warranted finding that the employee suffered a compensable “accidental injury.” Wolfe v. American Rolling Mill Co., 277 Ky. 395 , 126 S.W.2d 835, 1939 Ky. LEXIS 670 ( Ky. 1939 ) (decided under prior law).

Shock, overexertion and exposure are personal injuries within the scope of former KRS 342.005 . Central Lumber Co. v. Wood, 284 S.W.2d 688, 1955 Ky. LEXIS 45 ( Ky. 1955 ) (decided under prior law).

19. — Heart Attack.

Where all evidence for deceased employee was physicians’ testimony, which was that he died as a result of an attack of angina pectoris following a dilation of the heart which occurred after he had exerted himself in assisting shoeing a mule, such heart failure was not a traumatic injury by accident so as to render employer liable. Wallins Creek Collieries Co. v. Williams, 211 Ky. 200 , 277 S.W. 234, 1925 Ky. LEXIS 845 ( Ky. 1925 ) (decided under prior law).

Where steam boiler attendant, after fueling boiler in usual manner and without strain or exhaustion, was found dead near coal pile and shovel, compensation should not be awarded on ground that work contributed with existing heart trouble to cause death, there being no accidental injury arising out of employment. Fannin v. American Rolling Mill Co., 284 Ky. 188 , 144 S.W.2d 228, 1940 Ky. LEXIS 471 ( Ky. 1940 ) (decided under prior law).

Competent medical opinion to the effect that the strain of a specifically identified effort was a contributing cause to a disabling heart attack will support a finding of accidental injury. Johnson v. Stone, 357 S.W.2d 844, 1962 Ky. LEXIS 144 ( Ky. 1962 ) (decided under prior law).

Where employee suffered heart attack on job but no accident occurred to which the attack could be attributed, the rule that compensation shall be awarded for that part of disability which results from an accident “lighting up” or accelerating a preexisting disease was inapplicable. Rue v. Kentucky Stone Co., 313 Ky. 568 , 232 S.W.2d 843, 1950 Ky. LEXIS 909 ( Ky. 1950 ) (decided under prior law).

Where employee died of a heart attack suffered at work and there was competent medical testimony that the exertion of his work was a contributing cause of his heart attack, such injury was traumatic and was compensable. Grimes v. Goodlett & Adams, 345 S.W.2d 47, 1961 Ky. LEXIS 266 ( Ky. 1961 ) (decided under prior law).

Where an employee had a known prior heart ailment and had been advised by his physician that he should not have been working, the Board correctly found that the employee’s inevitable fatal heart attack was not caused by his employment nor a work connected event but by the natural progress of his preexisting heart disease, and therefore employee’s death was noncompensable. Hudson v. Owens, 439 S.W.2d 565, 1969 Ky. LEXIS 373 ( Ky. 1969 ) (decided under prior law).

Where a worker suffers from a preexisting heart disease the question as to whether the cardiac disability is merely coincidental with, rather than caused by, the work connected event is a factual determination to be made by the board from the totality of the circumstances and based on the legal rather than the medical concept of causation. Hudson v. Owens, 439 S.W.2d 565, 1969 Ky. LEXIS 373 ( Ky. 1969 ); Moore v. Square D Co., 518 S.W.2d 781, 1974 Ky. LEXIS 16 ( Ky. 1974 ) (decided under prior law).

20. — Neurosis.

A neurotic condition which directly and naturally results from a trauma is compensable. Eastern Coal Corp. v. Thacker, 290 S.W.2d 468, 1956 Ky. LEXIS 317 ( Ky. 1956 ). See Stone v. Arthur Hewitt Designs, Inc., 358 S.W.2d 513, 1962 Ky. LEXIS 185 ( Ky. 1962 ) (decided under prior law).

Workers’ compensation may properly be awarded when a claimant has suffered traumatic injury and his disability has been increased or prolonged by neurosis or a mental disorder attributable to the industrial accident. High Splint Coal Co. v. Jones, 338 S.W.2d 208, 1960 Ky. LEXIS 373 ( Ky. 1960 ) (decided under prior law).

In order to be compensable, a neurotic condition must be the natural and direct result of a traumatic injury. Martin v. Porcelain Metals Corp., 358 S.W.2d 485, 1962 Ky. LEXIS 174 ( Ky. 1962 ) (decided under prior law).

21. — Preexisting Disease.

A preexisting condition which had not expressed itself so as to disable the employee prior to a traumatic injury would not cut off the right to compensation where the injury itself was the initiating force which produced the disability. Browning v. Moss Williams & Co., 306 Ky. 520 , 208 S.W.2d 495, 1948 Ky. LEXIS 593 ( Ky. 1948 ), overruled in part, E. & L. Transport Co. v. Hayes, 341 S.W.2d 240, 1960 Ky. LEXIS 70 , 84 A.L.R.2d 1102 ( Ky. 1960 ) (decided under prior law).

22. — — Aggravation.

Death from pneumonia was held to be the result of a mine injury suffered three (3) years previously, as a consequence of which the employee was paralyzed from the waist down and left in a weakened condition. Manchester Coal Co. v. Haynes, 307 Ky. 838 , 212 S.W.2d 315, 1948 Ky. LEXIS 837 ( Ky. 1948 ) (decided under prior law).

A worker was entitled to his benefits even though his disability would not have resulted or would not have been as great if he had been whole and well or not already handicapped by some physical infirmity. Hendricks v. Kentucky & Virginia Leaf Tobacco Co., 312 Ky. 849 , 229 S.W.2d 953, 1950 Ky. LEXIS 769 ( Ky. 1950 ) (decided under prior law).

Neurosis is a disease which, when caused by trauma, is compensable and which, when preexisting, is compensable to the extent that the impairment is aggravated. Old King Mining Co. v. Mullins, 252 S.W.2d 871, 1952 Ky. LEXIS 1030 ( Ky. 1952 ) (decided under prior law).

23. Multiple Injuries.

Election of remedies occurs only when a person has two modes of redress for a single occurrence, which modes are contradictory and inconsistent, and where the claimant had two separate injuries he was, by law, entitled to pursue his claim for both causes. Peabody Coal Co. v. Burks, 568 S.W.2d 50, 1978 Ky. App. LEXIS 545 (Ky. Ct. App. 1978).

Where claimant prosecuted a claim for occupational disease to a successful conclusion and there was no need for appeal by either the claimant or the special fund, failure to take such appeal did not prevent him from pursuing a separate claim for injury and the special fund was clearly within its rights to claim, as credit against the previous award and its liability therefor, any sums awarded to the claimant on account of his injury. Peabody Coal Co. v. Burks, 568 S.W.2d 50, 1978 Ky. App. LEXIS 545 (Ky. Ct. App. 1978).

24. Complications Arising from Injury.

Based on the evidence, it was not unreasonable for the Worker’s Compensation Board to conclude that the disability resulting from the combination of the injury and its complications was sufficient, in and of itself, to render the claimant totally disabled and that being the case, all liability was properly allocated to the employer. Flenco, Inc. v. Beale, 812 S.W.2d 711, 1991 Ky. LEXIS 94 ( Ky. 1991 ).

25. Condition as a Result of Injury.

An employee has sustained a compensable injury when he is shown by competent relevant evidence to have a purely mental neurosis which is the proximate result of a physical injury by an accident arising out of and in the course of his employment and which neurosis, through functional disturbances of the nervous system, disables the employee from working at his former occupation. Eastern Coal Corp. v. Thacker, 290 S.W.2d 468, 1956 Ky. LEXIS 317 ( Ky. 1956 ) (decided under prior law).

26. Disease.

Death from inhaling sawdust when disconnecting pipes blowing sawdust into furnace, resulting in pneumonia and gangrene, was compensable. Schabel v. Riddell-Robineau Mfg. Co., 245 Ky. 409 , 53 S.W.2d 750, 1932 Ky. LEXIS 617 ( Ky. 1932 ) (decided under prior law).

A disease, to be compensable, must be assignable to a determinate or single act, identified in space and time. Kentucky Stone Co. v. Phillips, 294 Ky. 576 , 172 S.W.2d 216, 1943 Ky. LEXIS 493 ( Ky. 1943 ) (decided under prior law).

While injury and occupational disease are treated in the same manner by the statutes, they are entirely separate phenomena; traumatic injuries occur suddenly and usually result in abrupt cessation of work while occupational diseases progress gradually and it is customarily difficult to determine at what point work must cease; when traumatic injuries and ripening of occupational disease occur simultaneously, it is the traumatic injury which causes the claimant to cease work on any particular day. Peabody Coal Co. v. Burks, 568 S.W.2d 50, 1978 Ky. App. LEXIS 545 (Ky. Ct. App. 1978).

Although the concept of an occupational disease (aplastic anemia) caused by a toxic agent (benzene) is new to Kentucky and to the Workers’ Compensation Board, the Board did not err in apportioning liability on a 60/40 basis between the employer and the special fund. Certain-Teed Products Corp. v. Mitchell, 574 S.W.2d 910, 1978 Ky. App. LEXIS 634 (Ky. Ct. App. 1978).

27. — Preexisting Disease.

Where an employee had a preexisting disease of the heart and excitement and hurry caused it to fail, it was held that death resulting therefrom was not compensable as resulting from a traumatic injury by accident. Rusch v. Louisville Water Co., 193 Ky. 698 , 237 S.W. 389, 1922 Ky. LEXIS 63 ( Ky. 1922 ) (decided under prior law).

Finding that employee’s death was result of preexisting disease, not natural or direct result of accidental injury, was in effect finding that death resulted solely from preexisting disease, and that accident did not cause or contribute thereto. Aden Mining Co. v. Hall, 252 Ky. 168 , 66 S.W.2d 41, 1933 Ky. LEXIS 996 ( Ky. 1933 ) (decided under prior law).

When no part of the disability is traced to a preexisting disease, the board must award compensation to the extent of the disability. Black Mountain Corp. v. Snipes, 286 Ky. 630 , 151 S.W.2d 752, 1941 Ky. LEXIS 316 ( Ky. 1941 ) (decided under prior law).

Awards may not be made solely for preexisting disease. Department of Highways v. Manning, 288 Ky. 570 , 156 S.W.2d 854, 1941 Ky. LEXIS 145 ( Ky. 1941 ) (decided under prior law).

For an injury to be partially traceable to a preexisting disease, there must be a showing that some degree of disability therefrom existed previous to the disability for which compensation is claimed. Highland Co. v. Goben, 295 Ky. 803 , 175 S.W.2d 124, 1943 Ky. LEXIS 313 ( Ky. 1943 ) (decided under prior law).

A disability resulting from a congenital weakness or preexisting disease, although accelerated or hastened by the reasonable and customary exertion of one’s employment, is not an accidental injury. Elam v. Utilities-Elkhorn Coal Co., 257 S.W.2d 535, 1953 Ky. LEXIS 780 ( Ky. 1953 ) (decided under prior law).

Where a work-connected exertion precipitates or triggers a disability in which a preexisting disease is the predominating course, the award should represent only the contribution of the injury to the disability. Grimes v. Goodlett & Adams, 345 S.W.2d 47, 1961 Ky. LEXIS 266 ( Ky. 1961 ) (decided under prior law).

28. — — Compensable.

Where an employee fell from a ladder and injured his spine which “lighted up” a tubercular condition which had lain dormant since childhood, he was entitled to compensation for that part of his disability due to the fall. Robinson-Pettet Co. v. Workmen's Compensation Board, 201 Ky. 719 , 258 S.W. 318, 1924 Ky. LEXIS 641 ( Ky. 1924 ) (decided under prior law).

If qualified medical witnesses are willing to say that both the preexisting disease and the strain of a specially identified effort contributed to the damage, and the board so finds, there is no reason why the injury should not be compensable. Terry v. Associated Stone Co., 334 S.W.2d 926, 1960 Ky. LEXIS 245 ( Ky. 1960 ) (decided under prior law).

A disability emanating from a combination of both preexisting disease and traumatic injury need not produce the result of excluding compensation for the disease disability unless there was some probative evidence that the disease itself had manifested its active, disabling effects to some extent prior to the time of the traumatic injury. Wood-Mosaic Co. v. Shumate, 305 Ky. 368 , 204 S.W.2d 331, 1947 Ky. LEXIS 815 ( Ky. 1947 ) (decided under prior law).

29. — Evidence.

The Workers’ Compensation Board’s finding that claimant was permanently and occupationally disabled, as the result of an occupational disease (aplastic anemia) contracted in the course of employment, was supported by substantial evidence of probative value and would not be disturbed. Certain-Teed Products Corp. v. Mitchell, 574 S.W.2d 910, 1978 Ky. App. LEXIS 634 (Ky. Ct. App. 1978).

30. Arising out of and in the Course of Employment.

Whether employee’s death arose out of and in the course of his employment is law question for court, where facts are undisputed. Inland Gas Corp. v. Frazier, 246 Ky. 432 , 55 S.W.2d 26, 1932 Ky. LEXIS 766 ( Ky. 1932 ). See Turner Day & Woolworth Handle Co. v. Pennington, 250 Ky. 433 , 63 S.W.2d 490, 1933 Ky. LEXIS 715 ( Ky. 1933 ); Black Mountain Corp. v. Pace, 252 Ky. 550 , 67 S.W.2d 673, 1934 Ky. LEXIS 796 ( Ky. 1934 ) (decided under prior law).

The term “in the course of the employment” refers to the time, place, and circumstances under which the accident occurred. A. C. Lawrence Leather Co. v. Barnhill, 249 Ky. 437 , 61 S.W.2d 1, 1933 Ky. LEXIS 548 ( Ky. 1933 ), overruled, Ratliff v. Epling, 401 S.W.2d 43, 1966 Ky. LEXIS 392 ( Ky. 1966 ). See State Highway Com. v. Saylor, 252 Ky. 743 , 68 S.W.2d 26, 1933 Ky. LEXIS 1031 ( Ky. 1933 ); Rex-Pyramid Oil Co. v. Magan, 287 Ky. 459 , 153 S.W.2d 895, 1941 Ky. LEXIS 551 ( Ky. 1941 ); Harlan Collieries Co. v. Shell, 239 S.W.2d 923, 1951 Ky. LEXIS 905 ( Ky. 1951 ), overruled in part, Harlan Appalachian Regional Hospital v. Taylor, 424 S.W.2d 580, 1968 Ky. LEXIS 460 ( Ky. 1968 ), overruled, Clay v. Clay, 424 S.W.2d 583, 1968 Ky. LEXIS 461 ( Ky. 1968 ); Masonic Widows & Orphans Home v. Lewis, 330 S.W.2d 103, 1959 Ky. LEXIS 180 ( Ky. 1959 ) (decided under prior law).

An accident is one arising out of employment when it has its origin in risk connected with employment, and flows from that source as a rational consequence, or which is direct and natural result of a risk reasonably incident to employment in which the injured person is engaged. Bluegrass Pastureland Dairies v. Meeker, 268 Ky. 722 , 105 S.W.2d 611, 1937 Ky. LEXIS 499 ( Ky. 1937 ) (decided under prior law).

An accident arises in the course of employment if it is the direct and natural result of a risk reasonably incident to the employment in which the injured person is engaged. Standard Oil Co. v. Witt, 283 Ky. 327 , 141 S.W.2d 271, 1940 Ky. LEXIS 326 ( Ky. 1940 ) (decided under prior law).

Worker is in the course of his employment when timely performing duty for which he is employed at place where it is necessary or expedient for him to be to perform the work. Rex-Pyramid Oil Co. v. Magan, 287 Ky. 459 , 153 S.W.2d 895, 1941 Ky. LEXIS 551 ( Ky. 1941 ) (decided under prior law).

If the accident occurred while the servant was performing the service for which he was employed, the injury arose out of the employment. Draper v. Railway Accessories Co., 300 Ky. 597 , 189 S.W.2d 934, 1945 Ky. LEXIS 608 ( Ky. 1945 ) (decided under prior law).

The fundamental principle of liability is that the injury sustained was such as in the light of experience might reasonably have been foreseen as a result of the service and the nature of the duties performed or the cause must have had its origin in a risk connected with the employment and the injury have flowed from that source as a rational consequence. Harlan Collieries Co. v. Shell, 239 S.W.2d 923, 1951 Ky. LEXIS 905 ( Ky. 1951 ), overruled, Clay v. Clay, 424 S.W.2d 583, 1968 Ky. LEXIS 461 ( Ky. 1968 ), overruled in part, Harlan Appalachian Regional Hospital v. Taylor, 424 S.W.2d 580, 1968 Ky. LEXIS 460 ( Ky. 1968 ) (decided under prior law).

The fact that a risk may be common to all mankind does not disentitle a worker to compensation if, in the particular case, the risk arises out of the employment. Harlan-Wallins Coal Corp. v. Foster, 277 S.W.2d 14, 1955 Ky. LEXIS 451 ( Ky. 1955 ) (decided under prior law).

Accidents arising out of the employment are those in which it is possible to trace the injury to the nature of the employee’s work or to the risks to which the employer’s business exposes the employee. Stasel v. American Radiator & Standard Sanitary Corp., 278 S.W.2d 721, 1955 Ky. LEXIS 487 ( Ky. 1955 ) (decided under prior law).

31. — Causal Relationship.

For an injury to be compensable, there must be a causal relation between the employment and the accident. Billiter, Miller & McClure v. Hickman, 247 Ky. 211 , 56 S.W.2d 1003, 1933 Ky. LEXIS 377 ( Ky. 1933 ). See Lexington R. System v. True, 276 Ky. 446 , 124 S.W.2d 467, 1939 Ky. LEXIS 527 ( Ky. 1939 ), overruled, Corken v. Corken Steel Products, Inc., 385 S.W.2d 949, 1964 Ky. LEXIS 167 ( Ky. 1964 ); Standard Oil Co. v. Witt, 283 Ky. 327 , 141 S.W.2d 271, 1940 Ky. LEXIS 326 ( Ky. 1940 ); Tyler-Couch Const. Co. v. Elmore, 264 S.W.2d 56, 1954 Ky. LEXIS 642 ( Ky. 1954 ); Hayes Freight Lines, Inc. v. Burns, 290 S.W.2d 836, 1956 Ky. LEXIS 350 ( Ky. 1956 ); Maddox v. Heaven Hill Distilleries, Inc., 329 S.W.2d 189, 1959 Ky. LEXIS 146 ( Ky. 1959 ) (decided under prior law).

Where the evidence shows no preexisting disease or condition and the disability is traced directly, step by step, in quick and logical sequence, back to a definite accident occurring at a definite time and place, it is compensable. Tafel Electric Co. v. Scherle, 295 Ky. 99 , 173 S.W.2d 810, 1943 Ky. LEXIS 195 ( Ky. 1943 ) (decided under prior law).

Where record of employee’s treatment while he was admittedly sick or unable to work and the testimony of employer’s supervising employees constitute material proof that the accident complained of by employee did not occur and, in addition, his own employment conduct is inconsistent with the serious injury he claims to have suffered, evidence supported Board’s order denying compensation. Inland Steel Co. v. Johnson, 336 S.W.2d 581, 1960 Ky. LEXIS 343 ( Ky. 1960 ) (decided under prior law).

Causal connection is sufficient if the exposure to the risk which resulted in the injury results from the employment. Corken v. Corken Steel Products, Inc., 385 S.W.2d 949, 1964 Ky. LEXIS 167 ( Ky. 1964 ) (decided under prior law).

32. — Injury Within Contemplation.

Injury arises out of employment when causal connection exists between conditions under which work is required to be performed and resulting injury, or when injury is natural incident of work, or can be contemplated by reasonable person familiar with situation as result of exposure occasioned by nature of employment, but causative danger must be peculiar to work and must be incidental to character of business, and need not have been foreseen or expected, but must appear to have originated in risk connected with employment, and to have flowed from that source as rational consequence. Meem Haskins Coal Co. v. Jent, 269 Ky. 716 , 108 S.W.2d 726, 1937 Ky. LEXIS 664 ( Ky. 1937 ) (decided under prior law).

Injury is received in course of employment when it comes while worker is doing duty which he is employed to perform. Meem Haskins Coal Co. v. Jent, 269 Ky. 716 , 108 S.W.2d 726, 1937 Ky. LEXIS 664 ( Ky. 1937 ) (decided under prior law).

An injury arises out of employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. Louisville & Jefferson County Air Board v. Riddle, 301 Ky. 100 , 190 S.W.2d 1009, 1945 Ky. LEXIS 700 ( Ky. 1945 ). See Stasel v. American Radiator & Standard Sanitary Corp., 278 S.W.2d 721, 1955 Ky. LEXIS 487 ( Ky. 1955 ) (decided under prior law).

An injury is in the course of employment when received while the employee is performing some service for the employer in the line of duty. Louisville & Jefferson County Air Board v. Riddle, 301 Ky. 100 , 190 S.W.2d 1009, 1945 Ky. LEXIS 700 ( Ky. 1945 ). See Taylor v. Taylor Tire Co., 285 S.W.2d 173, 1955 Ky. LEXIS 74 ( Ky. 1955 ) (decided under prior law).

Where the injury is contributed to by some factor peculiar to the employment, it arises out of the employment even though the fall has its origin solely in some idiopathy of the employee. Stasel v. American Radiator & Standard Sanitary Corp., 278 S.W.2d 721, 1955 Ky. LEXIS 487 ( Ky. 1955 ) (decided under prior law).

An injury arises out of the employment only when it arises out of a hazard peculiar to or increased by that employment, and not common to people generally. Clear Fork Coal Co. v. Roberts, 279 S.W.2d 797, 1955 Ky. LEXIS 545 ( Ky. 1955 ) (decided under prior law).

An injury arises out of the employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. Taylor v. Taylor Tire Co., 285 S.W.2d 173, 1955 Ky. LEXIS 74 ( Ky. 1955 ) (decided under prior law).

To arise “out of” the employment, the accident sustained must have a causal connection with the work to be performed; it must be one which is possible to trace to the nature of the employee’s work or to the risks to which the employer’s business exposes the employee. Colwell v. Mosley, 309 S.W.2d 350, 1958 Ky. LEXIS 351 ( Ky. 1958 ) (decided under prior law).

Compensation is not recoverable for injuries sustained by reason of a cause independent of and unconnected with the work of employment because such injuries are not brought about by conduct growing out of and incident to the employment. Chesser v. Louisville Country Club, Inc., 313 S.W.2d 410, 1958 Ky. LEXIS 259 ( Ky. 1958 ) (decided under prior law).

33. — — Mining.

A coal miner who, while on the company’s premises, attempted to board a motorcar going from the tipple to the mouth of the mine for the purpose of requesting the motorman to carry his dinner bucket into the mine for him, slipped and his foot was mangled under the car was injured in an accident that arose out of and in the course and scope of his employment. Stearns Coal & Lumber Co. v. Smith, 231 Ky. 269 , 21 S.W.2d 277, 1929 Ky. LEXIS 253 ( Ky. 1929 ) (decided under prior law).

Mine employee who went into mine blacksmith shop to rest and get warm, after finishing his day’s work, and who was burned by coals falling on him after he had fallen asleep, was not injured by “an accident arising out of and in the course of his employment” and was not entitled to compensation, although employer had requested him to stay at mine for possible extra work, since his lying down by the fire and going to sleep was foreign to his employment and was a break therein. Meem-Haskins Coal Corp. v. Bach, 278 Ky. 535 , 128 S.W.2d 913, 1939 Ky. LEXIS 441 ( Ky. 1939 ) (decided under prior law).

A miner whose duty was to transport workers from mine to barn in empty cars at end of day and put motor in barn for the night got into one of the empty cars as another worker was hauling them away from the barn, fell from car and was killed. His purpose in getting into the empty car was to follow the empty cars to head house and see them safely put away for the night, and his acts was acquiesced in by his foreman. Thus, the accident occurred in the course of the miner’s employment. Black Mountain Corp. v. Vaughn, 280 Ky. 271 , 132 S.W.2d 938, 1939 Ky. LEXIS 97 ( Ky. 1939 ) (decided under prior law).

Evidence that claimant entered a coal chute to remove coal stoppage in it, was unable to get out alone and was helped out by fellow employees, and that when he was removed he was unable to walk or talk, did not show that he was disabled by accident arising out of his employment. Salyers v. G.&P. Coal Co., 467 S.W.2d 115, 1971 Ky. LEXIS 349 ( Ky. 1971 ) (decided under prior law).

34. — — Electric Shock.

An employee who was killed when on his way to work by attempting to remove an electric wire lying across path on master’s premises sustained an accident in the course of his employment, as he was attempting to serve his master and did only what an old and faithful employee would have been expected to do under the circumstances. Harlan Gas Coal Co. v. Trail, 213 Ky. 226 , 280 S.W. 954, 1926 Ky. LEXIS 484 ( Ky. 1926 ) (decided under prior law).

Where 25-year-old employee, theretofore in robust health, received severe electric shock, and thereafter complained of pains in back, grew sick and lost weight although physicians could not locate trouble, and number of months later was operated upon and cancer of liver discovered from which he died shortly thereafter, and where evidence of two physicians for claimant attributed cancer to electric shock, court should not reverse award, notwithstanding four professional witnesses for employer gave opinion that cancer was not proximate result of shock. Owensboro v. Day, 284 Ky. 644 , 145 S.W.2d 856, 1940 Ky. LEXIS 564 ( Ky. 1940 ) (decided under prior law).

Despite the fact that three (3) doctors who performed autopsy on deceased employee concluded that death was not caused by electrocution, the testimony of two other doctors, basing their conclusions on records and reports of the case, that death was caused by electrocution was sufficient to sustain compensation board’s finding that death was caused by electrocution in the course of employee’s employment. Dixie Darby Fuel Co. v. Franks, 311 Ky. 341 , 224 S.W.2d 147, 1949 Ky. LEXIS 1132 ( Ky. 1949 ) (decided under prior law).

35. — — Lightning.

Where miner was struck by lightning which hit tree on surface and ran down through crack in earth made by its settling after coal and pillars were removed, his injuries were sustained in the course of his employment and arose out of the employment. Stout v. Elkhorn Coal Co., 289 Ky. 736 , 160 S.W.2d 31, 1942 Ky. LEXIS 633 ( Ky. 1942 ) (decided under prior law).

Death by lightning is compensable only when the nature of the employment exposes the employee to a peculiar risk of being struck by lightning greater than that to which the public generally is exposed. Fuqua v. Department of Highways, 292 Ky. 783 , 168 S.W.2d 39, 1943 Ky. LEXIS 745 ( Ky. 1943 ) (decided under prior law).

An employee is entitled to compensation for injuries produced by lightning in all cases where he is subjected to danger from lightning greater than to others in the neighborhood. Bales v. Covington, 312 Ky. 551 , 228 S.W.2d 446, 1950 Ky. LEXIS 699 ( Ky. 1950 ) (decided under prior law).

Recovery of compensation by worker injured by lightning is permitted “if the current of the stroke is aided or assisted in any manner to seek out and land upon the injured servant where he is directed to and is engaged in his work.” Bales v. Covington, 312 Ky. 551 , 228 S.W.2d 446, 1950 Ky. LEXIS 699 ( Ky. 1950 ) (decided under prior law).

36. — — Peace Officers.

Where mining company employee whose chief duties were to maintain peace and order on its premises was killed while quieting a disturbance, his dependent wife was entitled to compensation, although employee was deputized by county sheriff and was the only employee engaged in such work for employer. Reliance Coal & Coke Co. v. Smith, 206 Ky. 320 , 266 S.W. 1094, 1924 Ky. LEXIS 315 ( Ky. 1924 ) (decided under prior law).

An employee whose duties were that of a company police officer who was killed when he sought to arrest persons disturbing an assemblage of persons, mostly employees and their families, in a picture show on company property by discharging firearms on a public highway passing by the building, and who was also a county patrolman, was killed by an accident “in the course of his employment.” Stearns Coal & Lumber Co. v. Ball, 218 Ky. 607 , 291 S.W. 1013, 1927 Ky. LEXIS 204 ( Ky. 1927 ) (decided under prior law).

Shooting of employee who was a deputy sheriff employed by a coal mine to keep peace and order in and around its premises and to quell disturbances before they reached the company’s camp, while attempting to quell a disturbance between company employees about 20 yards away from coal company’s premises, was an accident which arose out of and in the course of his employment. Wilson Berger Coal Co. v. Metcalf, 231 Ky. 93 , 21 S.W.2d 112, 1929 Ky. LEXIS 210 ( Ky. 1929 ) (decided under prior law).

37. — — Falls.

Employee injured by falling while clinging to rope being pulled up by crane from pit to floor above, although in violation of safety rule, sustained an accident arising out of and in the course of his employment. Ashland Iron & Mining Co. v. McDaniel's Dependents, 202 Ky. 19 , 258 S.W. 943, 1924 Ky. LEXIS 663 ( Ky. 19 24) (decided under prior law).

An employee who fell across a steel rail and fractured a rib and injured his bowels was held to have sustained a traumatic injury by accident arising out of and in the course and scope of his employment. Straight Creek Fuel Co. v. Hunt, 221 Ky. 265 , 298 S.W. 686, 1927 Ky. LEXIS 697 ( Ky. 1927 ) (decided under prior law).

If injury received by employee when he fell and bruised his elbow and hip caused streptococcus infection of his blood stream, which resulted in his death, rather than extraction of teeth, as claimed by employer, death was compensable. Agsten v. Brown-Williamson Tobacco Corp., 272 Ky. 20 , 113 S.W.2d 829, 1938 Ky. LEXIS 73 ( Ky. 1938 ) (decided under prior law).

38. — — Herniated Disc.

A herniated disc received in the course of employment is a compensable “accident.” Rowe v. Semet-Solvay Div. Allied Chemical & Dye Corp., 268 S.W.2d 416, 1954 Ky. LEXIS 901 ( Ky. 1954 ) (decided under prior law).

39. — — Heart Attack.

A claimant is required to prove a work-connected cause from the totality of the circumstances and one does not sustain a compensable heart attack merely because he was “at work” when the attack occurred. Armco Steel Corp. v. Lyons, 561 S.W.2d 676, 1978 Ky. App. LEXIS 471 (Ky. Ct. App. 1978).

Where employee suffered a heart attack while on the job but there was no evidence of causation other than presence at the job site, the Board’s finding of causation was clearly erroneous and failed to apply the correct standard to determine whether the attack was caused by work in the sense that it arose out of and occurred in the course of employment. Armco Steel Corp. v. Lyons, 561 S.W.2d 676, 1978 Ky. App. LEXIS 471 (Ky. Ct. App. 1978).

40. — — Inhalation of Gases.

This section authorizes compensation for injury or death due to inhaling any kind of gas in course of employment, and, to be compensable, disease superinduced by inhaling gases need not be result of traumatic injury. T. M. Crutcher Dental Depot, Inc. v. Miller, 251 Ky. 201 , 64 S.W.2d 466, 1933 Ky. LEXIS 819 ( Ky. 1933 ) (decided under prior law).

In order to recover compensation for injury resulting from inhalation of gas, employee must establish a causal connection. American Rolling Mill Co. v. Pack, 278 Ky. 175 , 128 S.W.2d 187, 1939 Ky. LEXIS 376 ( Ky. 1939 ) (decided under prior law).

Where inhalation of gas merely irritated lungs and fertilized ground for tubercle bacilli, which are present in most persons, tuberculosis was not a proximate result of the inhalation, and employee was not entitled to compensation. American Rolling Mill Co. v. Pack, 278 Ky. 175 , 128 S.W.2d 187, 1939 Ky. LEXIS 376 ( Ky. 1939 ) (decided under prior law).

Evidence that irritation of employee’s lungs by gas from picker created more fertile ground for tubercle bacilli was insufficient to sustain award for disability due to tuberculosis. American Rolling Mill Co. v. Adkins, 279 Ky. 234 , 130 S.W.2d 69, 1939 Ky. LEXIS 260 ( Ky. 1939 ) (decided under prior law).

Testimony of physicians, based on information that employee’s tubercular condition had not previously affected his ability to work, that inhalation of sulphur dioxide gas from refrigerator reactivated tubercular condition was sufficient to support award. Dixie Ice Cream Co. v. Ingels, 291 Ky. 39 , 163 S.W.2d 20, 1942 Ky. LEXIS 168 ( Ky. 1942 ) (decided under prior law).

Compensation award was justified on ground that miner’s death, shortly after working in mine, was the result of noxious gas poisoning, notwithstanding evidence for employer that it was result of epileptic fit, where evidence for claimant sufficiently indicated that deceased was a strong, able-bodied man working regularly, that room where he became ill was improperly ventilated, and that his symptoms prior to death corresponded to physician’s description of the effect of breathing noxious gases. Blue Diamond Coal Co. v. Neace, 303 Ky. 519 , 198 S.W.2d 223, 1946 Ky. LEXIS 894 ( Ky. 1946 ) (decided under prior law).

41. — Injury on way to or from Work.

Where employee fell over rock in private road on premises of employer while returning from work, injury was held to arise out of and in the course of his employment. Wilson Berger Coal Co. v. Brown, 223 Ky. 183 , 3 S.W.2d 199, 1928 Ky. LEXIS 298 ( Ky. 1928 ) (decided under prior law).

Ordinarily, when an employee is injured while traveling to and from his place of work and whether he is or is not paid for his time consumed going and coming, having departed from and not yet reaching, the employer’s premises, the injury does not arise out of the employment. Inland Gas Corp. v. Frazier, 246 Ky. 432 , 55 S.W.2d 26, 1932 Ky. LEXIS 766 ( Ky. 1932 ) (decided under prior law).

An employee on the master’s premises to begin or to engage in his work, or at the close of the day’s work in leaving the premises, is, within the compensation law, in the course of his employment. A. C. Lawrence Leather Co. v. Barnhill, 249 Ky. 437 , 61 S.W.2d 1, 1933 Ky. LEXIS 548 ( Ky. 1933 ), overruled, Ratliff v. Epling, 401 S.W.2d 43, 1966 Ky. LEXIS 392 ( Ky. 1966 ) (decided under prior law).

General rule that injuries sustained by employee off employer’s premises, when going to or returning from work, are not deemed to arise out of and in course of employment is subject to exceptions, depending on nature of circumstances of particular employment. Turner Day & Woolworth Handle Co. v. Pennington, 250 Ky. 433 , 63 S.W.2d 490, 1933 Ky. LEXIS 715 ( Ky. 1933 ) (decided under prior law).

There are many exceptions to the general rule that accidents occurring while employee is going to or from work are not considered as arising out of and in the course of employment, and the circumstances of each case are determining factors. State Highway Com. v. Saylor, 252 Ky. 743 , 68 S.W.2d 26, 1933 Ky. LEXIS 1031 ( Ky. 1933 ) (decided under prior law).

Injury was not compensable when sustained by employee while riding to work on truck hired by employer and driven by fellow employee, because, before work began, master-servant relationship did not exist and thus injury did not arise out of and in the course of employment. W. T. Congleton Co. v. Bradley, 259 Ky. 127 , 81 S.W.2d 912, 1935 Ky. LEXIS 271 ( Ky. 1935 ) (decided under prior law).

Generally, injuries sustained by employee when going to or returning from his regular place of work are not deemed to “arise out of and in course of employment,” so as to be compensable under this chapter, unless employer is under obligation to transport employee. Gray v. W. T. Congleton Co., 263 Ky. 716 , 93 S.W.2d 829, 1936 Ky. LEXIS 237 ( Ky. 1936 ) (decided under prior law).

Ordinarily, an employee injured on the premises of the employer in going to or from work is entitled to compensation. Black Mountain Corp. v. Vaughn, 280 Ky. 271 , 132 S.W.2d 938, 1939 Ky. LEXIS 97 ( Ky. 1939 ) (decided under prior law).

In going to or from work, or going from one place of work to another, employee may be in course of his employment, and he is not limited by exact time he reaches scene of his labor nor by time he actually commences, resumes or completes a particular duty, but he is permitted reasonable time, space and opportunity, both before and after, to commence or resume specific duties. Rex-Pyramid Oil Co. v. Magan, 287 Ky. 459 , 153 S.W.2d 895, 1941 Ky. LEXIS 551 ( Ky. 1941 ) (decided under prior law).

Where employee had ceased work an hour and a half before the accident and digressed from his unobstructed route of departure for no purpose of his master, the accident received during such departure is not compensable under the compensation law. Harbison-Walker Refractories Co. v. Brown, 296 Ky. 629 , 178 S.W.2d 39, 1944 Ky. LEXIS 600 ( Ky. 1944 ) (decided under prior law).

If the accident occurred within a reasonable time before or after the actual work and in preparation for departure from the service, and the thing done was to the interest of the master or an integral part of the preparation, the injury was held to have been received in the course of employment. Draper v. Railway Accessories Co., 300 Ky. 597 , 189 S.W.2d 934, 1945 Ky. LEXIS 608 ( Ky. 1945 ) (decided under prior law).

Where part of duties of night custodian at airport consisted of checking warning lights maintained by airport board on electric poles across road from airport, and on night of accident the custodian, in order to save time, looked at the lights as soon as he got off bus bringing him to work, and then, in crossing road to enter the airport grounds, was struck by a passing auto, the accident arose out of and in the course of his employment, notwithstanding he was not on employer’s premises and was not yet due to report for work. Louisville & Jefferson County Air Board v. Riddle, 301 Ky. 100 , 190 S.W.2d 1009, 1945 Ky. LEXIS 700 ( Ky. 1945 ) (decided under prior law).

The Court of Appeals has consistently recognized the general rule that injuries sustained by employees off the premises of the employer while going to or from work do not arise out of and in the course of employment. Miracle v. Harlan Wallins Coal Corp., 311 Ky. 169 , 223 S.W.2d 738, 1949 Ky. LEXIS 1089 ( Ky. 1949 ) (decided under prior law).

An injury is compensable if it occurs while an employee is going to or returning from his place of work along a road on the employer’s premises, built and maintained for his use. Harlan Collieries Co. v. Shell, 239 S.W.2d 923, 1951 Ky. LEXIS 905 ( Ky. 1951 ), overruled, Clay v. Clay, 424 S.W.2d 583, 1968 Ky. LEXIS 461 ( Ky. 1968 ), overruled in part, Harlan Appalachian Regional Hospital v. Taylor, 424 S.W.2d 580, 1968 Ky. LEXIS 460 ( Ky. 1968 ) (decided under prior law).

Where a worker suffers an accidental injury at a place within the building or structure or plant where he is expected or is expressly or impliedly permitted in going to or from his immediate spot of active labor, he is within the protection of the workers’ compensation law. King v. Lexington Herald-Leader Co., 313 S.W.2d 423, 1958 Ky. LEXIS 267 ( Ky. 1958 ) (decided under prior law).

Where employee was injured while leaving work while still on employer’s premises, although in construction area, and evidence showed other employees and officials used this exit, injury arose out of and in the course of employment. Charles R. Long Jr., Paint Co. v. Stewart, 335 S.W.2d 953, 1960 Ky. LEXIS 308 ( Ky. 1960 ) (decided under prior law).

Where an employee who works in Kentucky but lives in Ohio is killed in an automobile accident on the way back to Kentucky after visiting his family in Ohio, while riding with a fellow employee who is transporting some material between the company’s Ohio and Kentucky plants, the claimant’s death did not occur in the course of his employment so that his widow is not entitled to workers’ compensation benefits. Lycoming Shoe Co. v. Woods, 472 S.W.2d 257, 1971 Ky. LEXIS 183 ( Ky. 1971 ) (decided under prior law).

The critical issue is whether the employee was injured while performing some service for his employer, and travel from home to the place of employment is not performing some service for the employer, and therefore is not arising out of and in the course of employment. Brown v. Owsley, 564 S.W.2d 843, 1978 Ky. App. LEXIS 500 (Ky. Ct. App. 1978).

Where the claimants traveled from home to a central meeting point each morning and then to a fixed place of employment, although it changed from day to day or week to week, and where they worked a fixed schedule from 8:00 a.m. until 4:30 p.m., injuries or death incurred while in transit from home to work did not come within the purview of the Workers’ Compensation Act and it could not be said that their injuries and death arose out of or in the course of their employment. Brown v. Owsley, 564 S.W.2d 843, 1978 Ky. App. LEXIS 500 (Ky. Ct. App. 1978).

Where a route salesman went to a sales meeting at a supper club, his accident while driving home occurred during the course of a special errand for his employer; the trip to the club exposed the salesman to the hazards of the road that he would not have otherwise encountered, and the “going and coming rule” did not apply because the travel itself involved a mission for the employer distinct from commuting back and forth to a fixed place of employment. Husman Snack Foods Co. v. Dillon, 591 S.W.2d 701, 1979 Ky. App. LEXIS 494 (Ky. Ct. App. 1979).

42. — — Going and Coming Rule.

The basis of the “going and coming” rule is that, though broadly speaking the injury is incidental to the employment, workers’ compensation is dependent upon the fact that the employee is engaged in some service growing out of his employment, and that an employee in merely coming to or going from his work is not rendering any such service. Draper v. Railway Accessories Co., 300 Ky. 597 , 189 S.W.2d 934, 1945 Ky. LEXIS 608 ( Ky. 1945 ) (decided under prior law).

There are exceptions to the “going and coming” rule, and each case must be judged by the particular facts. Draper v. Railway Accessories Co., 300 Ky. 597 , 189 S.W.2d 934, 1945 Ky. LEXIS 608 ( Ky. 1945 ) (decided under prior law).

As a general rule, the relation of master and servant does not exist while the employee is off the premises of the employer going to and coming from work, but there are certain exceptions to the “going and coming” rule. Louisville & Jefferson County Air Board v. Riddle, 301 Ky. 100 , 190 S.W.2d 1009, 1945 Ky. LEXIS 700 ( Ky. 1945 ) (decided under prior law).

Under the ordinary “going and coming” rule, the employee is considered not to be in the course of his employment when traveling between his home and his place of employment. Applegate v. Hord, 373 S.W.2d 430, 1963 Ky. LEXIS 162 ( Ky. 1963 ) (decided under prior law).

Where employee was injured while riding with a fellow employee on the way to work at a place away from the employee’s regular place of employment, the “going and coming” rule did not apply to him and the injury was subject to the workers’ compensation law. Consequently, a suit against the fellow servant for negligence in causing the injury would not lie. Black v. Tichenor, 396 S.W.2d 794, 1965 Ky. LEXIS 129 ( Ky. 1965 ) (decided under prior law).

Where an employee was injured returning from a monthly meeting of a mining institute, in determining whether the “going and coming” rule applied, it would be appropriate for the board to permit evidence concerning the prevailing rules and practices affecting the question of the extent of employer encouragement to its employees in attending the institute’s programs along with the extent of employer benefits, if any, attributable to such attendance. Spurgeon v. Blue Diamond Coal Co., 469 S.W.2d 550, 1971 Ky. LEXIS 302 ( Ky. 1971 ) (decided under prior law).

43. — — Transportation Furnished by Employer.

Employer’s duty to transport employee to and from work may arise from express or implied contract, whether employee’s wages cover time involved or cost of transportation or both, or merely time from beginning work at destination to ceasing work, as respects employee’s right to compensation for injuries sustained while being so transported. Gray v. W. T. Congleton Co., 263 Ky. 716 , 93 S.W.2d 829, 1936 Ky. LEXIS 237 ( Ky. 1936 ) (decided under prior law).

Where a 30¢ an hour additional compensation was added to employee’s wages whether he traveled to and from his home to work or, instead, stayed in the county where his work was located and employee was injured in auto accident on way to work, the additional wages could not be considered as an express or implied undertaking of the employer to provide transportation or make an allowance for the cost of transportation and accident was not covered. Handy v. Kentucky State Highway Dep't, 335 S.W.2d 560, 1960 Ky. LEXIS 268 ( Ky. 1960 ) (decided under prior law).

44. — — Operating Premises.

Where employee was injured while on way to work because of defect in sidewalk on employer’s property which was used more by employees than other segments of public, the injury occurred on employer’s “operating premises” and was compensable. Smith v. Klarer Co., 405 S.W.2d 736, 1966 Ky. LEXIS 265 ( Ky. 1966 ) (decided under prior law).

An injury sustained by an employee on the employer’s parking lot while the employee was en route to work is compensable as an injury “arising out of and in the course of his employment,” as the parking lot qualified as part of the “operating premises.” Harlan Appalachian Regional Hospital v. Taylor, 424 S.W.2d 580, 1968 Ky. LEXIS 460 ( Ky. 1968 ), to the extent of conflict. (decided under prior law)

45. — Accident Occurring on Public Way.

Accident to employee while riding to noon lunch at restaurant in employer’s truck did not arise “out of and in the course of his employment,” since employee was not performing a service for employer, and neither owed the other any duty. Heffren v. American Medicinal Spirits Corp., 272 Ky. 588 , 114 S.W.2d 1115, 1938 Ky. LEXIS 171 ( Ky. 1938 ) (decided under prior law).

Injuries received by employee after leaving work and while on way home on public roadway and while performing no special duty for his employer which required his presence at the place of the accident were not compensable because not sustained in the course of his employment. Miracle v. Harlan Wallins Coal Corp., 311 Ky. 169 , 223 S.W.2d 738, 1949 Ky. LEXIS 1089 ( Ky. 1949 ) (decided under prior law).

46. — Travel for Benefit of Employer.

An employee who was killed while returning home with one of his employers from another town where he had gone to make arrangements for unloading of barrel staves which his company manufactured received fatal injuries from an accident arising out of and in the course and scope of his employment. Dink-Wilkerson Co. v. Miles, 229 Ky. 389 , 17 S.W.2d 258, 1929 Ky. LEXIS 768 ( Ky. 1929 ) (decided under prior law).

47. — Risks of the Street.

Accident arises out of employment if employee in course of his employment has to pass along public street and suffers accident through risk incidental to street. Rex-Pyramid Oil Co. v. Magan, 287 Ky. 459 , 153 S.W.2d 895, 1941 Ky. LEXIS 551 ( Ky. 1941 ) (decided under prior law).

48. — Employment Requiring Travel.

Salesman who was injured when he drove to a distant town on Sunday in order to begin canvassing the following morning was not injured in accident arising out of and in course of employment, since he worked on commission basis, his time was his own, and neither his work nor his employer required labor of him on Sunday. Scott Tobacco Co. v. Cooper, 258 Ky. 795 , 81 S.W.2d 588, 1934 Ky. LEXIS 587 ( Ky. 1934 ) (decided under prior law).

Death of traveling salesman as a result of burns suffered in a hotel fire was compensable as “arising out of and in the course of employment,” where salesman’s duties required him to spend much time away from home and he was given travel allowance by employer. Standard Oil Co. v. Witt, 283 Ky. 327 , 141 S.W.2d 271, 1940 Ky. LEXIS 326 ( Ky. 1940 ) (decided under prior law).

Automobile salesman’s death arose out of and in course of employment where he was supplied with car by employer and worked when and where he pleased, and where on occasion of fatal accident he had gone to city to see prospective buyer and had sought to follow up prospective trade and was returning therefrom when accident happened, notwithstanding he had taken friends with him on trip and had danced, drank, and played slot machines with them at various places they had visited. Mason-Waller Motor Co. v. Holeman, 284 Ky. 374 , 144 S.W.2d 796, 1940 Ky. LEXIS 491 ( Ky. 1940 ) (decided under prior law).

49. — Injury on Premises While Not at Work.

The death of a coal miner, employed to work in day time only, which occurred at nighttime in employer’s mine, was not due to an accident arising out of his employment. Consolidation Coal Co. v. Ratliff, 217 Ky. 103 , 288 S.W. 1057, 1926 Ky. LEXIS 31 ( Ky. 1926 ) (decided under prior law).

Where employee, serving as maintenance man and general custodian of quarry corporation’s property, subject to call at all hours, elected through personal choice, comfort, and convenience to live in cottage owned by president of corporation, which was adjacent to employer’s premises and probably a part thereof, his accidental death in a fire in cottage occurred on employer’s premises and in the course of employment. Jefferson County Stone Co. v. Bettler, 304 Ky. 87 , 199 S.W.2d 986, 1947 Ky. LEXIS 583 ( Ky. 1947 ) (decided under prior law).

Where miner was required to return employer’s lamp when he had completed his shift in the mine and, while so returning the lamp, fell on icy road, the injuries were sustained as a result of an accident “arising out of and in course of employment” within the meaning of the workers’ compensation law. Harlan-Wallins Coal Corp. v. Foster, 277 S.W.2d 14, 1955 Ky. LEXIS 451 ( Ky. 1955 ) (decided under prior law).

Where a worker was paid only for that time when he actually performed tasks for the benefit of his employer and was injured while he chose to remain on the premises to engage in personal activities for which he knew he would not be compensated, the worker was not covered by workers’ compensation. Rabbitt Hash Iron Works v. Strubel, 689 S.W.2d 606, 1985 Ky. App. LEXIS 727 (Ky. Ct. App. 1985).

50. — Injury While Off Work.

Compensation from private employer for death of guard was not allowed when guard was also deputy sheriff and was killed when acting solely in his deputy sheriff’s capacity, entirely away from private employer’s premises, and at direct behest of sheriff. Black Mountain Corp. v. Pace, 252 Ky. 550 , 67 S.W.2d 673, 1934 Ky. LEXIS 796 ( Ky. 1934 ) (decided under prior law).

51. — Deviation from Employment.

Where an employee, at the time and place of his injury, is engaged in his own business, purpose or pleasure, or is injured on his way back to his place of duty from such deviating engagement, such injury is not compensable under the workers’ compensation law. Warfield Natural Gas Co. v. Muncy, 244 Ky. 213 , 50 S.W.2d 543, 1932 Ky. LEXIS 404 ( Ky. 1932 ) (decided under prior law).

Death of employee on employer’s premises which occurred as a result of a cave-in on the employer’s premises one-half hour after the employee quit work and while he was gathering coal for his personal use resulted from such a deviation from the course of his employment as to preclude recovery. Ratliff v. Epling, 401 S.W.2d 43, 1966 Ky. LEXIS 392 ( Ky. 1966 ) (decided under prior law).

52. — Rescue of Fellow Employees.

Rescuing fellow employees from dangers in emergencies comes within the scope of employment. Adams v. Bryant, 274 S.W.2d 791, 1955 Ky. LEXIS 557 (Ky. Ct. App. 1955) (decided under prior law).

53. — Injury by Fellow Employee.

Where employee is injured by fellow worker in altercation connected with employment, injury results from “accident arising out of employment” and employee is entitled to compensation. Kentucky Fluorspar Co. v. Wolford, 263 Ky. 471 , 92 S.W.2d 753, 1936 Ky. LEXIS 192 ( Ky. 1936 ) (decided under prior law).

Claim against fellow employee for injuries sustained at the work place where there was no deliberate intent to injure was properly dismissed. Johnson v. Lohre, 508 S.W.2d 785, 1974 Ky. LEXIS 633 ( Ky. 1974 ), overruled, Brooks v. Burkeen, 549 S.W.2d 91, 1977 Ky. LEXIS 407 ( Ky. 1977 ), overruled in part, Brooks v. Burkeen, 549 S.W.2d 91, 1977 Ky. LEXIS 407 ( Ky. 1977 ), overruled on other grounds, Brooks v. Burkeen, 549 S.W.2d 91, 1977 Ky. LEXIS 407 (Ky. 1977), overruled, Giuliani v. Guiler, 951 S.W.2d 318, 1997 Ky. LEXIS 74 ( Ky. 1997 ), overruled, Combs v. Comair, Inc. (in re Air Crash at Lexington, Ky), 556 F. Supp. 2d 665, 2008 U.S. Dist. LEXIS 1216 (E.D. Ky. 2008 ), overruled in part, Martin v. Ohio County Hosp. Corp., 295 S.W.3d 104, 2009 Ky. LEXIS 234 ( Ky. 2009 ) (decided under prior law).

54. — Employee Engaged in Business of Employer and Self.

An employee is not covered when he is going about his private business and expects to perform some service for his employer at one time or another. George T. Williams & Sons v. Coffey, 243 S.W.2d 661, 1951 Ky. LEXIS 1150 ( Ky. 1951 ) (decided under prior law).

55. — Acts for Employee’s Benefit.

Acts necessary to the comfort and convenience of the employee while at work, though strictly personal to himself and not acts of service, are incidental to the service, and injuries sustained in the performance of such acts are deemed to have arisen out of the employment. Codell Const. Co. v. Neal, 258 Ky. 603 , 80 S.W.2d 530, 1935 Ky. LEXIS 179 ( Ky. 1935 ). See Blue Diamond Coal Co. v. Walters, 287 S.W.2d 921, 1956 Ky. LEXIS 484 ( Ky. 1956 ) (decided under prior law).

Acts necessary to the comfort and convenience of an employee on his job, though strictly personal to the employee and not acts of service to the employer, are considered incidental to the employment, and therefore accidents arising from the performance of such acts are compensable. Jefferson County Stone Co. v. Bettler, 304 Ky. 87 , 199 S.W.2d 986, 1947 Ky. LEXIS 583 ( Ky. 1947 ) (decided under prior law).

There is no break in a man’s employment merely because he leaves his work momentarily and runs a short distance on his employer’s premises to get out of the rain or to get a garment to protect himself from the rain so that he may work more comfortably and efficiently. Blue Diamond Coal Co. v. Walters, 287 S.W.2d 921, 1956 Ky. LEXIS 484 ( Ky. 1956 ) (decided under prior law).

56. — Furnishing Safe Place to Work.

Where employee was killed by falling slate while on duty at mine, by employer’s failure to discharge duty to furnish him a safe place for reasonable supervision over operation of pumps and motors, it was immaterial whether employee was engaged in work of testing or oiling motors or warming himself when slate fell. Hall's Adm'x v. West Kentucky Coal Co., 226 Ky. 847 , 11 S.W.2d 971, 1928 Ky. LEXIS 186 ( Ky. 1928 ) (decided under prior law).

57. — Horseplay.

Employee who went to washroom to clean up after his day’s work and was killed by an electric wire carrying 114 volts of current while washing in a basin provided by his employer, the wire having been used in employer’s business, suffered from an accident arising out of and in the course of his employment. The mere fact that the wire may have been placed on a washbasin by some employee in a spirit of horseplay would not defeat recovery for compensation if the deceased employee did not himself engage in the horseplay, since he was not then wilfully negligent. Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262 , 204 S.W. 152, 1918 Ky. LEXIS 520 ( Ky. 1918 ) (decided under prior law).

The death of an employee caused by being injured when another employee, in cleaning his clothes after work, applied an air hose to his rectum and ruptured his intestines was held not the result of an accident arising out of and in the course of his employment. Hazelwood v. Standard Sanitary Mfg. Co., 208 Ky. 618 , 271 S.W. 687, 1925 Ky. LEXIS 348 ( Ky. 1925 ) (decided under prior law).

Employee injured or killed as result of horseplay is not entitled to compensation. Rex-Pyramid Oil Co. v. Magan, 287 Ky. 459 , 153 S.W.2d 895, 1941 Ky. LEXIS 551 ( Ky. 1941 ) (decided under prior law).

Employee will not be denied compensation notwithstanding having theretofore been engaged in horseplay, if at time of accident he was in course of his employment and cause of accident was hazard to which he was subjected because of his employment. Rex-Pyramid Oil Co. v. Magan, 287 Ky. 459 , 153 S.W.2d 895, 1941 Ky. LEXIS 551 ( Ky. 1941 ) (decided under prior law).

Injury arose out of employment where employee, who had crossed street from employer’s place of business to garage to make telephone call relating to his duties, was struck by automobile when starting back across street, notwithstanding that employee had engaged in horseplay with man at garage and in starting back across street was laughing, looking back over his shoulder, and running to escape having water thrown on him. Rex-Pyramid Oil Co. v. Magan, 287 Ky. 459 , 153 S.W.2d 895, 1941 Ky. LEXIS 551 ( Ky. 1941 ) (decided under prior law).

The general rule is that compensation is not recoverable for injuries sustained through horseplay or practical joking where it was independent of and disconnected from performance of any duty of employment, since such injuries cannot ordinarily be regarded as having originated in any risk connected with and caused by the employment. Tyler-Couch Const. Co. v. Elmore, 264 S.W.2d 56, 1954 Ky. LEXIS 642 ( Ky. 1954 ) (decided under prior law).

The general rule is that compensation is not recoverable for injuries sustained through horseplay, done independently of and unconnected with the work of employment, for the reason that such injuries could not be said to have been brought about while performing services growing out of and incidental to employment. Hayes Freight Lines, Inc. v. Burns, 290 S.W.2d 836, 1956 Ky. LEXIS 350 ( Ky. 1956 ) (decided under prior law).

Where caddy at country club, who was waiting to be called for work, chased a cat into boiler room, discovered whiskey bottles and drank from same and was injured when the bottles turned out to be filled with boiler cleaning fluid, such injury was not compensable under this section as such injuries were not brought about by conduct growing out of and incident to the employment, and such conduct did not come within the “horseplay” exception. Chesser v. Louisville Country Club, Inc., 313 S.W.2d 410, 1958 Ky. LEXIS 259 ( Ky. 1958 ) (decided under prior law).

58. — Murder.

Murder of milk deliverer by former customer on porch of former customer’s home under belief that intimacy had arisen between milk deliverer and customer’s wife was not compensable because not “arising out of employment,” notwithstanding evidence, which was contradicted, that milk distributor’s officers, with knowledge of former customer’s suspicion, directed milk deliverer to go to former customer’s home to return overpayment on milk bill. Bluegrass Pastureland Dairies v. Meeker, 268 Ky. 722 , 105 S.W.2d 611, 1937 Ky. LEXIS 499 ( Ky. 1937 ) (decided under prior law).

Award to dependents of slain gas station attendant was upheld as death resulted from attendant’s attempt to evict his murderer from the premises according to his employer’s instructions. People's Service Station, Inc. v. Purvis, 379 S.W.2d 222, 1964 Ky. LEXIS 220 ( Ky. 1964 ) (decided under prior law).

Where salesman was shot and killed while getting into his automobile after he had taken a luncheon break and when he was planning to make further calls on customers, his death arose out of and in course of his employment and his dependents were entitled to compensation. Corken v. Corken Steel Products, Inc., 385 S.W.2d 949, 1964 Ky. LEXIS 167 ( Ky. 1964 ) overruling Lexington Ry. Sys. v. True, 276 Ky. 446 , 124 S.W.2d 467, 1939 Ky. LEXIS 527 (1939)) (decided under prior law).

Where employee who crossed picket line during labor difficulties was fatally shot on public highway on leaving work after completing his assigned duties, his death arose out of and in the course of his employment. Blue Diamond Coal Co. v. Creech, 411 S.W.2d 331, 1967 Ky. LEXIS 466 ( Ky. 1967 ) (decided under prior law).

59. — Assault.

Where plaintiff roadhand had quit work for the day, had been given a ride to his house by roadwork supervisor, at which point he was struck and injured by passing auto, the fact that employer had control over road for maintenance and construction at site of injury did not make such site “premises” of employer for compensation purposes. State Highway Com. v. Saylor, 252 Ky. 743 , 68 S.W.2d 26, 1933 Ky. LEXIS 1031 ( Ky. 1933 ) (decided under prior law).

Where employee is assaulted and injury is inflicted upon him through personal animosity arising over some cause wholly disconnected with employer’s business, employee cannot recover compensation even though he is assaulted in discharge of his duties. Kentucky Fluorspar Co. v. Wolford, 263 Ky. 471 , 92 S.W.2d 753, 1936 Ky. LEXIS 192 ( Ky. 1936 ) (decided under prior law).

If assault by third person embraced any element of interference with employer’s property or interests, or employee’s agency, or was direct and natural result of risk reasonably incident to employment, or if there was causal connection between employment and injury, it was both within “scope of employment” and in “course of employment” and compensable; if assault on employee was solely personal and motivated by individual animosity, injury would not be compensable. Louisville Public Warehouse v. Marcell, 274 Ky. 320 , 118 S.W.2d 696, 1938 Ky. LEXIS 262 ( Ky. 1938 ) (decided under prior law).

Shooting of watchman on grounds of timber company did not arise out of and in course of his employment when he was shot without warning from ambush by person unknown when returning to duty after early morning breakfast, evidence not supporting any justifiable inference that assault had cause or connection with employment. Howard v. Dawkins Log & Mill Co., 284 Ky. 9 , 143 S.W.2d 741, 1940 Ky. LEXIS 432 ( Ky. 1940 ) (decided under prior law).

Compensation will be granted for injuries due to an assault by a fellow employee when they are fairly traceable to an incident of the employment, and will be denied where they are the result of personal grievances not connected in any way with the employment. York v. Hazard, 301 Ky. 306 , 191 S.W.2d 239, 1945 Ky. LEXIS 720 ( Ky. 1945 ). See Henry Vogt Machine Co. v. Chamberlain, 279 S.W.2d 224, 1955 Ky. LEXIS 510 ( Ky. 1955 ); Travis Creek Fuel Co. v. Maggard, 293 S.W.2d 720, 1956 Ky. LEXIS 88 ( Ky. 1956 ); Hall v. Clark, 360 S.W.2d 140, 1962 Ky. LEXIS 212 ( Ky. 1962 ) (decided under prior law).

Death of street cleaner as a result of assault upon him by a coworker, with a shovel, as both were getting out of truck in which they had been working was held compensable as “arising out of” the employment, where there was no evidence of any previously existing enmity or personal grievances between the men unconnected with their work. York v. Hazard, 301 Ky. 306 , 191 S.W.2d 239, 1945 Ky. LEXIS 720 ( Ky. 1945 ) (decided under prior law).

Disagreements and fights arising between employees about their work which result in injuries or death may reasonably be termed incidental to the employment. York v. Hazard, 301 Ky. 306 , 191 S.W.2d 239, 1945 Ky. LEXIS 720 ( Ky. 1945 ) (decided under prior law).

An assault by one employee upon another is an “accident” and, if work-connected or arising out of and in the course of his employment, falls within the workers’ compensation law. Williams v. Nowak, 406 S.W.2d 408, 1966 Ky. LEXIS 203 ( Ky. 1966 ) (decided under prior law).

When an employee, during a violent strike, remains on the job despite considerable risk, he is performing a special service for his employer by minimizing the employer’s loss due to the strike and he deserves compensation for injuries attributable to the fact that he performed his assigned tasks, regardless of where or when the assault took place. Blue Diamond Coal Co. v. Creech, 411 S.W.2d 331, 1967 Ky. LEXIS 466 ( Ky. 1967 ) (decided under prior law).

60. —Intoxication.

Where the employee, while intoxicated, placed an unlicensed and intoxicated person behind the wheel, he was guilty of wilful misconduct and intoxication with recovery properly denied. Banks v. Department of Education, 462 S.W.2d 428, 1971 Ky. LEXIS 552 ( Ky. 1971 ) (decided under prior law).

Where the employee was so intoxicated that he could not perform his duties and had delayed his return trip for two hours to continue drinking, within the meaning of the workers’ compensation law, he was no longer in the course of his employment when the accident occurred. Banks v. Department of Education, 462 S.W.2d 428, 1971 Ky. LEXIS 552 ( Ky. 1971 ) (decided under prior law).

Administrative law judge’s decision that an employee’s injury was not proximately caused by his voluntary intoxication, under KRS 342.610(3), was not contrary to such overwhelming evidence as to compel the opposite conclusion, where three (3) of the employee’s coworkers, one of whom witnessed the accident in which the employee was injured, testified the employee was in complete control of his faculties. Perdue Farms, Inc. v. Stogner, 2002 Ky. App. LEXIS 2030 (Ky. Ct. App. Sept. 27, 2002), aff'd, 2003 Ky. Unpub. LEXIS 57 (Ky. Sept. 18, 2003).

Workers’ compensation benefits were properly barred to a police officer injured in an automobile pursuit, pursuant to KRS 342.610(3), as substantial evidence indicated the officer’s voluntary intoxication was the primary cause of an injury. Campbell v. City of Booneville, 85 S.W.3d 603, 2002 Ky. LEXIS 184 ( Ky. 2002 ).

Driver of a school bus was not entitled to fellow-employee immunity when a school board employee who was a passenger on the bus was injured in a crash of the bus because the driver's voluntarily intoxication while operating the bus, through the use of prescription medications, was an act so far removed from that which would be ordinarily be anticipated by the school board which employed the driver that the act of the driver was outside the scope and course of the driver's employment. Roach v. Wilson, 551 S.W.3d 450, 2017 Ky. App. LEXIS 576 (Ky. Ct. App. 2017).

61. — Intentional Injury.

Board’s ruling that employer had to establish beyond reasonable doubt that employee intentionally injured himself was erroneous. Black Star Coal Co. v. Hall, 257 Ky. 481 , 78 S.W.2d 343, 1935 Ky. LEXIS 44 ( Ky. 1935 ) (decided under prior law).

Charge of wanton and gross negligence against employer and fellow servant is not charge of death through “deliberate intention” so as to bring action. McCray v. Davis H. Elliott Co., 419 S.W.2d 542, 1967 Ky. LEXIS 157 ( Ky. 1967 ) (decided under prior law).

There is nothing about the determination of “deliberate intent” that is so peculiar to workers’ compensation law that a circuit judge or jury could not decide the issue. This section provides an exception to KRS 342.325 , and clearly allows for a choice to either take under the act or to sue in a civil proceeding. The argument that the estate may try to collect under the act if their civil suit should fail is totally without merit. This section plainly sets forth the loss of a right to collect under the act if one would continue with the civil lawsuit. Zurich Am. Ins. Co. v. Brierly, 936 S.W.2d 561, 1996 Ky. LEXIS 95 ( Ky. 1996 ).

In a claim arising from the contraction of AIDS by a nurse while working for a health department, the administrative law judge properly rejected the health department’s argument that there was uncontradicted evidence that the nurse intentionally injected herself with the virus, thereby precluding benefits under subsection (3), since the only indication that the nurse intentionally stuck herself with a poisonous needle was her own statement, which was made while she was in a highly emotional state and during the advanced stages of AIDS, and her irrational behavior was the reason for her in-patient care at the mental facility at which she made such statement. Barren River District Health Dep't v. Hussey, 2000 Ky. App. LEXIS 39 (Ky. Ct. App. Apr. 14, 2000).

Trial court properly granted judgment notwithstanding the verdict pursuant to CR 50.02 to a construction company in a wrongful death action; the workers’ compensation exclusivity statute, KRS 342.610(4), applied to bar the action, as the company’s violations of safety rules in relation to a trench which collapsed on a worker did not constitute a deliberate intention to kill the worker. Moore v. Envtl. Constr. Corp., 147 S.W.3d 13, 2004 Ky. LEXIS 188 ( Ky. 2004 ).

Where workers at a uranium enrichment plant alleged that plant operators deliberately exposed the workers to radiation, provided inadequate safety measures, and kept the workers ignorant of the dangers, there was no evidence that the operators had the specific intent to injure the workers within the meaning of KRS 342.610(4) and thus, under KRS 342.690(1), the workers’ remedies were limited to those provided by the Kentucky Workers' Compensation Act. Rainer v. Union Carbide Corp., 402 F.3d 608, 2005 FED App. 0112P, 2005 U.S. App. LEXIS 3795 (6th Cir. Ky. 2005 ), amended, 2005 U.S. App. LEXIS 5079 (6th Cir. Mar. 25, 2005), cert. denied, 546 U.S. 978, 126 S. Ct. 562, 163 L. Ed. 2d 462, 2005 U.S. LEXIS 7885 (U.S. 2005).

Exception to the exclusivity of workers’ compensation did not apply, where plaintiff had not produced any evidence that decedent’s demotion was with the specific intent to harm decedent versus simply a business decision. Meade v. Arnold, 643 F. Supp. 2d 913, 2009 U.S. Dist. LEXIS 65032 (E.D. Ky. 2009 ).

62. — — Suicide.

Where an employee committed suicide two years after sustaining an injury, and her family claimed benefits, the Workers’ Compensation Board had to determine from the evidence: first, whether the employee suffered a work-related injury; second, whether, as a result of that injury, she developed a mental disorder which impaired her normal and rational judgment; and finally, whether such mental disorder was the proximate cause of her suicide. Wells v. Harrell, 714 S.W.2d 498, 1986 Ky. App. LEXIS 1198 (Ky. Ct. App. 1986).

The standard which is to be used to determine whether the suicide of a worker will be held compensable is the chain of causation rule. An employee’s suicide which arises in the course of and results from covered employment is compensable provided (1) the employee sustained an injury which itself arose in the course of and resulted from covered employment; (2) without that injury the employee would not have developed a mental disorder of such a degree as to impair the employee’s normal and rational judgment; and (3) without that mental disorder the employee would not have committed suicide. Wells v. Harrell, 714 S.W.2d 498, 1986 Ky. App. LEXIS 1198 (Ky. Ct. App. 1986).

Since this section bars recovery where death is intentional or willful, recovery following suicide depends upon the mental state of the decedent, and whether that mental state was proximately caused by an underlying work-related injury. Wells v. Harrell, 714 S.W.2d 498, 1986 Ky. App. LEXIS 1198 (Ky. Ct. App. 1986).

The chain of causation rule used to determine whether the suicide of a worker will be held compensable does not require a showing of either uncontrollable impulse or of mental derangement, nor does the rule require that the underlying injury be disabling. Wells v. Harrell, 714 S.W.2d 498, 1986 Ky. App. LEXIS 1198 (Ky. Ct. App. 1986).

In response to the query: when is subsection (3) of this section a defense barring compensation for suicide—the answer lies in what condition is being compensated. If the compensable condition is a work-related injury and the suicide is unrelated to that injury, then the suicide is irrelevant and benefits may be continued pursuant to subsection (3) of KRS 342.730 . If, pursuant to the chain-of-causation rule, the suicide is work-related, then KRS 342.750 governs. If, however, a mental condition resulting in a suicide is proximately caused by nonwork-related injuries or personal problems, or where a worker attempts to manufacture a workers’ compensation claim by inflicting harm, subsection (3) of this section bars the claim. Advance Aluminum Co. v. Leslie, 869 S.W.2d 39, 1994 Ky. LEXIS 12 ( Ky. 1994 ).

63. — Wilful Misconduct.

The defense of wilful misconduct provided by the workers’ compensation law has no reference to action at common law. Clark County Const. Co. v. Richards' Adm'r, 202 Ky. 276 , 259 S.W. 331, 1924 Ky. LEXIS 691 ( Ky. 1924 ) (decided under prior law).

For an employee to be guilty of “wilful misconduct” under the law, his conduct should involve an intentional, deliberate action with a reckless disregard of consequences either to himself or to another — something less than voluntary self-infliction of injury but greater than gross negligence or wanton carelessness. Black Mountain Corp. v. Higgins, 226 Ky. 7 , 10 S.W.2d 463, 1928 Ky. LEXIS 17 ( Ky. 1928 ) (decided under prior law).

In proceedings to obtain compensation for injuries sustained by employee when attempting to extinguish fire in open gasoline can, injured employee’s testimony that fire was started by sparks from an emery wheel or pistons striking together, and that he did not throw a match into the can, was sufficient to support board’s finding that accident was not a result of “wilful misconduct” notwithstanding testimony of two coworkers that he did throw a lighted match into the can. C. Lee Cook Mfg. Co. v. Hodges, 304 Ky. 9 , 199 S.W.2d 635, 1946 Ky. LEXIS 929 ( Ky. 1946 ) (decided under prior law).

64. — — Negligence.

Fact that employee of coal mining company was injured while riding in a bank car in violation of company rules but with their knowledge and acquiescence and in car furnished by them to take him to and from work was, at most, contributory negligence and not wilful misconduct which would relieve employer from liability for his death. Rockport Coal Co. v. Barnard, 210 Ky. 5 , 273 S.W. 533, 1925 Ky. LEXIS 617 ( Ky. 1925 ) (decided under prior law).

65. — — Violation of Safety Rules.

Employee killed by falling while hanging onto rope from crane lifting him from pit to next floor above was guilty of intentional failure to obey a lawful and reasonable rule of the company and subject to a penalty of 15% reduction in compensation, but his death was not caused by his own wilful misconduct as urged by defending employer. Ashland Iron & Mining Co. v. McDaniel's Dependents, 202 Ky. 19 , 258 S.W. 943, 1924 Ky. LEXIS 663 ( Ky. 19 24) (decided under prior law).

The intentional violation of a safety rule does not amount to such wilful misconduct as to preclude recovery for compensation. Big Elkhorn Coal Co. v. Burke, 206 Ky. 489 , 267 S.W. 142, 1924 Ky. LEXIS 317 ( Ky. 1924 ) (decided under prior law).

66. — Evidence.

A claimant must show “an occupational injury,” and that there was some causative connection with the injury, and something peculiar to the employment. Warfield Natural Gas Co. v. Muncy, 244 Ky. 213 , 50 S.W.2d 543, 1932 Ky. LEXIS 404 ( Ky. 1932 ) (decided under prior law).

Compensation claimants had burden of proving that employee came to his death as result of accident arising out of and in course of his employment, but were not required to produce direct evidence of such fact. Evidence reasonably sustaining inference or raising presumption that employee’s death was so caused is sufficient. Codell Const. Co. v. Neal, 258 Ky. 603 , 80 S.W.2d 530, 1935 Ky. LEXIS 179 ( Ky. 1935 ). See Lee Clay Products Co. v. Stamper, 268 Ky. 786 , 105 S.W.2d 1069, 1937 Ky. LEXIS 538 ( Ky. 1937 ) (decided under prior law).

To meet burden of proof that injury arose out of and in course of employment of watchman on employer’s grounds who was shot from ambush outside of grounds by unknown person, there should appear some motive for assault having causal connection with employment. Howard v. Dawkins Log & Mill Co., 284 Ky. 9 , 143 S.W.2d 741, 1940 Ky. LEXIS 432 ( Ky. 1940 ) (decided under prior law).

Medical evidence for employee, in light of subsequently developed facts, did not show that injury arose out of employment, where employee’s physician, while admitting preexisting infection of blood stream, ascribed heart condition to carbon monoxide poisoning due to kerosene torch near working place but did not base opinion on condition of room, and other physicians discovered no such poisoning, and thereafter employee worked in another state at hard physical labor at higher wages after physical examination disclosing no carbon monoxide poisoning affecting heart. Kentucky Utilities Co. v. Hammons, 284 Ky. 437 , 145 S.W.2d 67, 1940 Ky. LEXIS 524 ( Ky. 1940 ) (decided under prior law).

The burden of proof is on the claimant to show that his disability was the result of the injury received by him, but he does not have to sustain his case by the weight of the evidence, and the burden is met where he establishes his disability was caused by the injury. Nevertheless, the evidence must possess something or substance and relevant consequence and not consist of vague, uncertain or irrelevant matter not having the fitness to induce conviction. American Rolling Mill Co. v. Stevens, 290 Ky. 16 , 160 S.W.2d 355, 1941 Ky. LEXIS 4 ( Ky. 1941 ) (decided under prior law).

The burden is on the employee or his representative to establish the basic conditions of liability, and a finding against the employer must rest upon evidence of sound probative character. Hornsby v. International Harvester Co., 310 Ky. 208 , 220 S.W.2d 401, 1949 Ky. LEXIS 881 ( Ky. 1949 ) (decided under prior law).

Evidence that employee, in apparent good health, was found dead in mine near power line where he was working was sufficient to support finding that his death was due to electrocution. Blair Fork Coal Co. v. Blankenship, 416 S.W.2d 716, 1967 Ky. LEXIS 275 ( Ky. 1967 ) (decided under prior law).

67. — Injury Within Scope of Employment.

Employee who left substation where he worked and went to shop to warm, receiving burns while there from which he died, was injured in the course of his employment. Allen v. Columbus Mining Co., 207 Ky. 183 , 268 S.W. 1073, 1925 Ky. LEXIS 49 ( Ky. 1925 ) (decided under prior law).

Employee who was injured by being struck by an automobile while out on an errand for his employer was injured by an accident arising out of and in course of his employment. Palmer v. Main, 209 Ky. 226 , 272 S.W. 736, 1925 Ky. LEXIS 469 ( Ky. 1925 ) (decided under prior law).

Where the employee was directed by the chief officer of the employer, through his foreman, to go and do a certain task and he did so with the company’s tools and was paid by the company specially for that work, he was within the orbit of his employment with right to compensation for injuries sustained by reason of his obedience. Nugent Sand Co. v. Hargesheimer, 254 Ky. 358 , 71 S.W.2d 647, 1934 Ky. LEXIS 78 ( Ky. 1934 ) (decided under prior law).

Fireman’s helper, who was allowed to sleep in distillery basement, was within the course of his employment when helping night watchman repair an elevator, and his death, caused by falling from the elevator, was compensable, though he was not on duty at the time. Kentucky Valley Distilling Co. v. Quartermous, 275 Ky. 389 , 121 S.W.2d 917, 1938 Ky. LEXIS 434 ( Ky. 1938 ) (decided under prior law).

68. — Injury Not Within Scope of Employment.

Where coal company guard, who was also deputy sheriff, received compensation from company for use of his automobile in guarding payroll and in going for supplies, although he was not required to furnish automobile, but received no compensation for taking those arrested on company’s premises for drunkenness to jail or before magistrate, injury to guard in company machine shop resulting from his taking automobile spring to shop for repair was “in the course of” the guard’s employment but not compensable because not “arising out of” such employment. Meem Haskins Coal Co. v. Jent, 269 Ky. 716 , 108 S.W.2d 726, 1937 Ky. LEXIS 664 ( Ky. 1937 ) (decided under prior law).

Where highway employee, at direction of foreman, sought shelter from storm in private garage near highway and was killed when lightning struck garage, his death did not arise out of his employment and was not compensable. Fuqua v. Department of Highways, 292 Ky. 783 , 168 S.W.2d 39, 1943 Ky. LEXIS 745 ( Ky. 1943 ) (decided under prior law).

Where same family owned hardware and funeral home adjacent to it and the businesses were separate entities but the workers’ compensation register was jointly maintained, and hardware employee received permission to ride along with funeral home employee while he was delivering flowers but hardware employee was not needed for the loading or delivery, injury received by hardware employee in automobile accident that occurred during the trip did not arise out of and in the course of his employment. Justice v. Call Bros. Hardware Co., 312 Ky. 761 , 229 S.W.2d 746, 1950 Ky. LEXIS 756 ( Ky. 1950 ) (decided under prior law).

69. Compensation from Special Fund.

Although the Workers’ Compensation Board found that none of the claimant’s occupational disability was attributable to his work-related back injury alone and thus that his employer was not liable for payment of compensation, the Board’s finding did not preclude the imposition of liability for compensation on the special fund. Land v. Starks, 628 S.W.2d 346, 1981 Ky. App. LEXIS 316 (Ky. Ct. App. 1981).

70. Claimant Receiving Unemployment Compensation.

There is nothing in the workers’ compensation statutes which would authorize the board to deny workers’ compensation benefits for the period of time that unemployment compensation benefits are received by a claimant; KRS 342.700 establishes no such requirement. Wells v. Jones, 662 S.W.2d 849, 1983 Ky. App. LEXIS 312 (Ky. Ct. App. 1983).

71. Action for Retaliatory Discharge.

A complaint seeking damages for wrongful discharge because an employee was terminated for pursuing a claim under KRS Chapter 342 for workers’ compensation states a cause of action. Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 1983 Ky. LEXIS 305 ( Ky. 1983 ), limited, Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 1995 Ky. LEXIS 48 ( Ky. 1995 ), limited, Maiden v. Clark Invs., 1995 Ky. App. LEXIS 179 (Ky. Ct. App. Oct. 20, 1995).

It is an important public interest that injured employees shall receive, and employers shall be obligated to pay, for medical expenses, rehabilitative services and a portion of lost wages, and, therefore, action on the part of an employer which prevents an employee from asserting his statutory right to medical treatment and compensation violates that policy; the only effective way to prevent an employer from interfering with his employees’ rights to seek compensation is to recognize that the latter has a cause of action for retaliatory discharge when the discharge is motivated by the desire to punish the employee for seeking the benefits to which he is entitled by law. Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 1983 Ky. LEXIS 305 ( Ky. 1983 ), limited, Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 1995 Ky. LEXIS 48 ( Ky. 1995 ), limited, Maiden v. Clark Invs., 1995 Ky. App. LEXIS 179 (Ky. Ct. App. Oct. 20, 1995).

72. Appeal.

Where the evidence before the Workers’ Compensation Board conclusively established that the employee’s injury was work-related and that she committed suicide two years later, but there was conflicting evidence as to her mental condition and as to whether there was a causal relationship between the injury and the suicide, the Circuit Court erred in requiring the Board to reexamine the facts in order to arrive at the “proper” conclusion, and that portion of the Circuit Court’s order directing that a particular factual conclusion be made was reversed. Wells v. Harrell, 714 S.W.2d 498, 1986 Ky. App. LEXIS 1198 (Ky. Ct. App. 1986).

Cited:

McCracken County Health Spa v. Henson, 568 S.W.2d 240, 1977 Ky. App. LEXIS 920 (Ky. Ct. App. 1977); Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44, 1978 Ky. App. LEXIS 678 (Ky. Ct. App. 1978); Barmet of Kentucky, Inc. v. Sallee, 605 S.W.2d 29, 1980 Ky. App. LEXIS 362 (Ky. Ct. App. 1980); Borman v. Interlake, Inc., 623 S.W.2d 912, 1981 Ky. App. LEXIS 299 (Ky. Ct. App. 1981); Sublett v. Tennessee Valley Authority, 726 F. Supp. 1077, 1989 U.S. Dist. LEXIS 15284 (W.D. Ky. 1989 ); Gordon v. NKC Hosps., 887 S.W.2d 360, 1994 Ky. LEXIS 132 ( Ky. 1994 ); Matthews v. G & B Trucking, Inc., 987 S.W.2d 328, 1998 Ky. App. LEXIS 118 (Ky. Ct. App. 1998); Commonwealth v. Gussler, 278 S.W.3d 153, 2008 Ky. App. LEXIS 251 (Ky. Ct. App. 2008); Ford Motor Co. v. Sheets, 2019 Ky. App. LEXIS 37 (Ky. Ct. App. Mar. 22, 2019).

Notes to Unpublished Decisions

Analysis

  1. In General.
  2. Contractors.
1. In General.

Unpublished decision: Because the exclusive remedy provisions of KRS 342.610 were not incorporated into the employers’ liability policy issued by an insurer to an employer, the court rejected the insurer’s contention that coverage under the policy was not applicable to a suit brought against the employer by the estate of an employee to recover for the employee’s death, which occurred during the course of his employment with the employer. Westfield Cos. v. Quality Signs & Serv., 2005 Ky. App. LEXIS 91 (Ky. Ct. App. Apr. 8, 2005).

Unpublished decision: Even accepting the employees' allegations as true, they failed to allege facts from which to infer that the employer harbored specific intent to injure; without that intent, the employees' claims did not fall within the Kentucky Workers' Compensation Act's deliberate-intention exception. Cox v. Koninklijke Philips, N.V., 647 Fed. Appx. 625, 2016 FED App. 0252N, 2016 U.S. App. LEXIS 8688 (6th Cir. Ky. 2016 ).

2. Contractors.

Unpublished decision: Manufacturing company could not claim immunity from liability in tort based on workers’ compensation being the exclusive remedy, as the contractor’s work for the manufacturing company did not involve the kind of work that was a regular or recurrent part of the manufacturing company’s business; as a result, the trial court erred in granting summary judgment to the manufacturing company on the workers’ and spouses’ premises liability claims, which were not barred by the exclusive provisions of the workers’ compensation statute. Cain v. GE, 2003 Ky. App. LEXIS 325 (Ky. Ct. App. Dec. 19, 2003), aff'd in part and rev'd in part, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

Unpublished decision: Issue of fact as to whether defendant company qualified as a contractor, where plaintiffs offered evidence that the work of a decedent and his employer at the time of the accident at issue was maintenance and that maintenance was not a regular or recurrent part of the company’s business. Smith v. N. Am. Stainless, L.P., 158 Fed. Appx. 699, 2005 FED App. 0976N, 2005 U.S. App. LEXIS 27873 (6th Cir. Ky. 2005 ).

Unpublished decision: Company was not a contractor for purposes of “up-the-ladder” immunity, where the company contracted with another entity to provide and install equipment that would become a melt shop. Although melt shop equipment required routine maintenance, the company offered no evidence that it contracted with the other entity to provide such maintenance; rather, the other entity contracted to provide and install the equipment. Smith v. N. Am. Stainless, L.P., 158 Fed. Appx. 699, 2005 FED App. 0976N, 2005 U.S. App. LEXIS 27873 (6th Cir. Ky. 2005 ).

Unpublished decision: Summary judgment was properly entered for an automobile company, which was sued by a truck driver who was injured while making a routine delivery to one of the company’s plants; the company was entitled to “up the ladder” immunity under Kentucky Worker’s Compensation Act (KWCA) because: (1) the driver’s employer was one of the company’s subcontractors because it regularly delivered automotive parts between the company’s manufacturing plants; (2) the company was, therefore, a “contractor” as that term was defined in KRS 342.610(2)(b); and (3) it was entitled to immunity under KRS 342.690 (1997) because the employer, its subcontractor, had already secured worker’s compensation benefits for the driver under the KWCA. Giles v. Ford Motor Co., 123 Fed. Appx. 190, 2005 U.S. App. LEXIS 2286 (6th Cir. Ky. 2005 ).

Unpublished decision: Because the U.S. had taken advantage of the “up-the-ladder” immunity provision of KRS 342.690(1), and given that the duties plaintiff was performing at the time of the accident were a regular part of the maintenance performed at the fort, the U.S. was entitled to immunity under KRS 342.690(1). McWhinnie v. United States, 2009 U.S. App. LEXIS 29557 (6th Cir. Ky. Nov. 25, 2009).

Unpublished decision: General contractor was immune from tort liability because its’ installation work could be classified as recurrent work; the contractor entered into eight sales contracts within the last ten years to provide installation services. In addition, the contractor stated that when installation services were provided, they are part and parcel of the contract for sale of equipment to the customer; these were clear indications that the contractor provided recurrent work for installation services as defined by the Kentucky courts. Dilts v. United Group Servs., LLC, 500 Fed. Appx. 440, 2012 FED App. 1013N, 2012 U.S. App. LEXIS 19717 (6th Cir. Ky. 2012 ), cert. denied, 569 U.S. 957, 133 S. Ct. 2022, 185 L. Ed. 2d 885, 2013 U.S. LEXIS 3458 (U.S. 2013).

Unpublished decision: District court improperly found that a corporation and its subsidiary were immune from tort liability under KRS 342.690(1) on the basis that an injured employee had already received workers’ compensation from the direct employer because they failed to show that they were contractors under KRS 342.610(2) since they did not produce evidence that established that the work the employee performed at the time of the injury was the type of work that they or similar businesses would be expected to perform with their own employees. Black v. Dixie Consumer Prods. LLC, 516 Fed. Appx. 412, 2013 FED App. 0198N, 2013 U.S. App. LEXIS 3805 (6th Cir. Ky. 2013 ).

Unpublished decision: In action arising from worker’s injury at defendant’s plant, defendant was up-the-ladder statutory employer under Kentucky’s Workers’ Compensation Act, and entitled to exclusive remedy immunity, because when the worker was injured, he was running electrical power, which was a regular-or-recurrent task that defendant’s employees performed. Dunn v. Corning, Inc., 575 Fed. Appx. 644, 2014 FED App. 0615N, 2014 U.S. App. LEXIS 15655 (6th Cir. Ky. 2014 ).

Opinions of Attorney General.

Subsection (2) may make a real estate broker liable if a real estate salesman, although an independent contractor, employs a third person to work for him, so that the prime contractor would be liable to the employees of the subcontractor for workers’ compensation if the subcontractor fails to carry workers’ compensation insurance on his employees and, since the new Workers’ Compensation Act with certain exceptions covers every employer with one or more employees, the mere employment by the salesman of an employee for him could expose the broker to coverage under the new act. OAG 73-112 .

If a subcontractor is a natural person or is a partnership, then it is not necessary for the prime contractor to insure the individual owner of the subcontractor business or the partners of a subcontractor business, only their employees; however, if the subcontractor is a corporation, all the persons working for the corporation are employees, including the president of the corporation, and if that subcontractor does not have workers’ compensation insurance, the prime contractor is liable for such compensation. OAG 74-555 .

Where the employer injures an employee deliberately, the employee has the choice of either using the Workmen’s (Workers’) Compensation Act or suing the employer as if the act did not exist but the employee cannot use both. OAG 76-142 .

A prime contractor who contracts with a subcontractor without requiring workers’ compensation insurance coverage of the subcontractor is taking a risk of the prime contractor’s liability; even where the subcontractor has all his employees reject the Workers’ Compensation Act or has no employees, the prime contractor is still exposed to future contingencies in relation to that subcontractor. OAG 79-584 .

Research References and Practice Aids

Journal of Mineral Law & Policy.

Krause, Drug and Alcohol Abuse in Mining: An Employer’s Dilemma, 3 J.M.L. & P., 2 (1988).

Kentucky Bench & Bar.

Cooper, The “Comp” Factor in Tort Cases, 51 Ky. Bench & B. 14 (1987).

Fogle, Workplace Injuries: Exclusive Remedy in the New Millennium, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 31.

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 65 Ky. L.J. 411 (1976-77).

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

Rogers, Apportionment in Kentucky After Comparative Negligence, 75 Ky. L.J. 103 (1986-87).

Baugh, Worker’s Compensation: Temporary Employees and the Exclusiveness-of-Remedy Provisions, 86 Ky. L.J. 1 (1997-98).

Northern Kentucky Law Review.

Notes, Torts — Intentional Torts in the Workplace — Further Erosion of the Worker’s Compensation Act Exclusive Remedy Bar to Tort Actions — Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St. 2d 608, 433 N.E.2d 572, 1982 Ohio LEXIS 620 (1982), 10 N. Ky. L. Rev. 355 (1983).

Jones and Jackson, Cumulative Trauma Disorders: A Repetitive Strain on the Workers’ Compensation System, 20 N. Ky. L. Rev. 765 (1993).

King, Workers’ Compensation Update 1992-1993, 21 N. Ky. L. Rev. 329 (1994).

Jackson and Crase, A Surveyof Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

ALR

Suicide as compensable under Workmen’s Compensation Act. 15 A.L.R.3d 616.

Workmen’s compensation: Injury or death due to storms. 42 A.L.R.3d 385.

Injury sustained while attending employer-sponsored social affair as arising out of and in the course of employment. 47 A.L.R.3d 566.

Employer’s liability for injury caused by food or drink purchased by employee in plant facilities. 50 A.L.R.3d 505.

What conduct is willful, intentional, or deliberate within Workmen’s Compensation Act provision authorizing tort action for such conduct. 96 A.L.R.3d 1064.

Mental disorders as compensable under workmen’s compensation acts. 97 A.L.R.3d 161.

Workmen’s Compensation Act as furnishing exclusive remedy for employee injured by product manufactured, sold, or distributed by employer. 9 A.L.R.4th 873.

Workers’ compensation: Coverage of employee’s injury or death from exposure to the elements — modern cases. 20 A.L.R.5th 346.

342.615. Registration of employee leasing companies — Coverage requirements for lessees — Status of temporary help service.

  1. As used in this section:
    1. “Employee leasing company” or “lessor” means an entity that grants a written lease to a lessee pursuant to an employee leasing arrangement;
    2. “Lessee” means an employer that obtains all or part of its workforce from another entity through an employee leasing arrangement;
    3. “Leased employee” means a person performing services for a lessee under an employee leasing arrangement;
    4. “Employee leasing arrangement” means an arrangement under contract or otherwise whereby the lessee leases all or some of its workers from an employee leasing company. Employee leasing arrangements include, but are not limited to, full-service employee leasing arrangements, long-term temporary arrangements, and any other arrangement which involves the allocation of employment responsibilities among two (2) or more entities. For purposes of this section, “employee leasing arrangement” does not include arrangements to provide temporary workers;
    5. “Temporary worker” means a worker who is furnished to an entity to substitute for a permanent employee on leave or to meet seasonal or short-term workload conditions for a finite period of time; and
    6. “Temporary help service” means a service whereby an organization hires its own employees and assigns those employees to clients for finite periods of time to support or supplement the client’s workforce in special work situations, including employee absences, temporary skill shortages, and seasonal workloads.
  2. A corporation, partnership, sole proprietorship, or other business entity which acts as an employee leasing company shall register with the commissioner in the manner as prescribed by administrative regulations.
  3. Any lessor of employees whose workers’ compensation insurance has been terminated within the past five (5) years in any jurisdiction due to a determination that an employee leasing arrangement was being utilized to avoid premiums, taxes, or assessments otherwise payable by lessees shall be ineligible to register with the commissioner or to remain registered, if previously registered.
  4. A lessee shall fulfill its statutory responsibility to secure benefits for leased employees under this chapter by purchasing and maintaining a standard workers’ compensation policy approved by the commissioner of the Department of Insurance. A lessee may fulfill that responsibility by contracting with an employee leasing company to purchase and maintain the required insurance policy. In either event, it shall be the responsibility of the lessee to maintain in its files at all times the certificate of insurance, or a copy thereof, evidencing the existence of the required insurance. The exposure and experience of the lessee shall be used in determining the premium for the policy and shall include coverage for all leased employees.
  5. A temporary help service shall be deemed the employer of a temporary worker and shall be subject to the provisions of this chapter.

History. Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 36, effective December 12, 1996; 2010, ch. 24, § 1836, effective July 15, 2010.

Legislative Research Commission Note.

(12/12/96). In codifying this statute, the phrase “employer leasing company” defined in subsection (1)(a) of the statute has been changed to read “employee leasing company” as being a manifest clerical or typographical error under KRS 7.136(1)(h). It is clear both from the terms of this definition itself as well as from the fact that “employee leasing company,” not “employer leasing company,” is used within this range of statutes that the word “employer” should be “employee” in this phrase.

NOTES TO DECISIONS

1. Employee Status.

Insurer had no duty to indemnify its insured, which lacked workers’ compensation coverage, against the claims of the estates of the insured’s employees who were killed during the course of employment; though the deceased employees were hired to meet a seasonal workload, they were not “furnished” to the insured by a temporary help service, but were hired directly by it, and thus they were not “temporary workers” covered by the policy but ordinary employees for whom the policy excluded coverage. Ind. Ins. Co. v. Brown, 2003 Ky. App. LEXIS 326 (Ky. Ct. App. Dec. 24, 2003), aff'd, 184 S.W.3d 528, 2005 Ky. LEXIS 392 ( Ky. 2005 ).

Since the two (2) decedents killed in a work related accident were not “furnished to” the employer by a temporary help service, both therefore were employees of the employer and fell within the “employee” exclusions of the employer’s automobile policy. Brown v. Ind. Ins. Co., 184 S.W.3d 528, 2005 Ky. LEXIS 392 ( Ky. 2005 ).

Trial court’s finding that an auction business had up-the ladder immunity in a claim brought by a worker allegedly injured by the negligence of a temporary employee working for the auction business was error because the auction business was a contractor and the temporary service was a subcontractor, and as a contractor, the auction business was liable to the temporary service’s employees for workers’ compensation, but was immune from civil suit by those employees. Johnston v. Labor Ready, Inc., 2007 Ky. App. Unpub. LEXIS 250 (Ky. Ct. App. Apr. 6, 2007), aff'd, 289 S.W.3d 200, 2009 Ky. LEXIS 153 ( Ky. 2009 ).

As KRS 342.615(5) deemed a temporary help service to be a temporary employee’s employer, KRS 342.690(1) would not deem an injured permanent employee and the temporary employee to be co-employees, and therefore immunize the subcontractor and temporary employee from the permanent employee’s tort claim. Labor Ready, Inc. v. Johnston, 289 S.W.3d 200, 2009 Ky. LEXIS 153 ( Ky. 2009 ).

Workers’ Compensation Board properly affirmed an opinion, award, and order of administrative law judges (ALJ) that determined, inter alia, that an injured worker was an employee of an employee leasing company because the contract between the company and a restaurant expressly stated that the company was an independent contractor and all individuals assigned to the restaurant were workers of the company, and the worker did not meet the definition of a temporary worker as she was not furnished to an entity by a temporary help service, and the ALJ’s reference to her as such was not a finding of fact, but only a means of referring to her as a worker who worked on an as-needed basis. JSE, Inc. v. Ahart, 2020 Ky. App. LEXIS 31 (Ky. Ct. App. Mar. 13, 2020).

Supreme Court of Kentucky concludes that an employee leasing arrangement as defined by Ky. Rev. Stat. Ann. § 342.615 differs substantially from a loaned servant situation, and therefore the common law principle of the loaned servant doctrine that a servant may not be considered an employee of an employer of whom he has no knowledge does not apply in the context of an employee leasing arrangement. Ky. Uninsured Employers' Fund v. Hoskins, 449 S.W.3d 753, 2014 Ky. LEXIS 543 ( Ky. 2014 ).

Conclusion of the Workers' Compensation Board and Court of Appeals that an insurance carrier could have had no liability for an employee's workers' compensation benefits simply because he had no knowledge of the employee leasing arrangement that may have existed between an employee leasing company, its affiliate, and the company that had a employee leasing arrangement was rejected. Ky. Uninsured Employers' Fund v. Hoskins, 449 S.W.3d 753, 2014 Ky. LEXIS 543 ( Ky. 2014 ).

2. Failure to comply

Decision was not based on the failure to comply with KRS 342.615 ; although the Workers’ Compensation Board found the argument persuasive that the insurer did not know a corporation was allegedly leasing its employees because proper forms were not filed, the Board also based its decision on the finding that the worker was unaware of the corporation’s existence, and there was insufficient evidence to prove that a leasing agreement existed. Ky. Uninsured Emplrs.' Fund v. Hoskins, 440 S.W.3d 370, 2013 Ky. LEXIS 97 ( Ky. 2013 ), different results reached on reh'g, 449 S.W.3d 753, 2014 Ky. LEXIS 543 ( Ky. 2014 ).

Research References and Practice Aids

Kentucky Law Journal.

Baugh, Worker’s Compensation: Temporary Employees and the Exclusiveness-of-Remedy Provisions, 86 Ky. L.J. 1 (1997-98).

342.620. Definitions. [Renumbered.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 78, § 2; 1978, ch. 256, § 3, effective June 17, 1978; 1980, ch. 104, § 13, effective July 15, 1980; 1984, ch. 414, § 39, effective July 13, 1984; 1987 (Ex. Sess.), ch. 1, § 51, effective October 26, 1987) was renumbered by the Reviser as KRS 342.0011 .

342.630. Coverage of employers.

The following shall constitute employers mandatorily subject to, and required to comply with, the provisions of this chapter:

  1. Any person, other than one engaged solely in agriculture, that has in this state one (1) or more employees subject to this chapter.
  2. The state, any agency thereof, and each county, city of any class, school district, sewer district, drainage district, tax district, public or quasipublic corporation, or any other political subdivision or political entity of the state that has one (1) or more employees subject to this chapter.

History. Enact. Acts 1972, ch. 78, § 3.

NOTES TO DECISIONS

  1. In General.
  2. Constitutionality.
  3. Contractor.
  4. Agriculture.
  5. Quantity of Business.
  6. State Agency.
  7. Nonresident Employer.
  8. Governmental Entities.
1. In General.

The effect of this section is to subject all employers, except for employers of exempt employees, to the Workers’ Compensation Law with no option of election not to come under the law. Davis v. Turner, 519 S.W.2d 820, 1975 Ky. LEXIS 178 ( Ky. 1975 ).

While the words “secure payment of compensation as provided by this chapter” appearing in KRS 342.760 and 342.690 obviously refer to the providing of insurance or security as required by KRS 342.340 , the obligation to so provide is not conditioned on any election by an employer but is automatically imposed on all employers mandatorily made subject to the act by this section, and accordingly, if a subject employer simply ignores the act, in every respect he fails to secure the payment of compensation the same as an employer who has publicly proclaimed his intent to be under the act but who has not provided insurance or security. Davis v. Turner, 519 S.W.2d 820, 1975 Ky. LEXIS 178 ( Ky. 1975 ).

2. Constitutionality.

The agriculture exclusion contained in the Workers’ Compensation Act is not violative of the equal protection clauses of the state and federal constitutions because of discriminatory classification of workers. Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44, 1978 Ky. App. LEXIS 678 (Ky. Ct. App. 1978).

3. Contractor.

A contractor which had no immediate employees was not an employer under this section. Mills v. Arthur Constr. Co., 559 S.W.2d 742, 1977 Ky. App. LEXIS 873 (Ky. Ct. App. 1977).

Where a contractor had taught an assistant the electric wiring trade by instructing him on the job, the contractor procured the home improvement jobs, he only decided whether he needed aid after he had begun an electrical project, the contractor determined whether the assistant worked at all, and the assistant served as a helper to the contractor and followed his instructions, no other inference can be drawn than that the assistant was an employee. Wright v. Fardo, 587 S.W.2d 269, 1979 Ky. App. LEXIS 467 (Ky. Ct. App. 1979).

City was not liable as a contractor under KRS 342.610(2); KRS 342.630 considers persons and governmental entities to be separate classes of employers subject to KRS Chapter 342, and although KRS 342.630 requires both classes to provide workers’ compensation coverage to direct employees, KRS 342.610(2) considers only persons to be contractors subject to up-the-ladder liability. Uninsured Employers' Fund v. City of Salyersville, 260 S.W.3d 773, 2008 Ky. LEXIS 148 ( Ky. 2008 ).

4. Agriculture.

For the courts to declare that boarding horses is covered by the act would impose an unexpected hardship, primarily upon persons operating smaller farms, who have had no legislative notice nor opportunity to obtain insurance coverage. Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44, 1978 Ky. App. LEXIS 678 (Ky. Ct. App. 1978).

In order to qualify for the so-called agricultural exemption, provided for in subdivision (1) of this section, a person must be engaged solely in agriculture and not merely engaged principally in agriculture. Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44, 1978 Ky. App. LEXIS 678 (Ky. Ct. App. 1978).

Operator of farm on which tobacco, hay, cattle and thoroughbred yearlings were raised but on which 73 percent of the gross receipts came from boarding mares owned by others was excluded from the operation of the Workers’ Compensation Law since such operation was agriculture. Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44, 1978 Ky. App. LEXIS 678 (Ky. Ct. App. 1978).

The mere fact that a farm owner runs a farm operation caring for the horses of others for compensation does not convert an agricultural enterprise into an industrial one for the purposes of this section. Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44, 1978 Ky. App. LEXIS 678 (Ky. Ct. App. 1978).

The usual practice of animal husbandry is included within the general term “agriculture.” Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44, 1978 Ky. App. LEXIS 678 (Ky. Ct. App. 1978).

Because sale of quail to hunting preserves to be hunted was an agricultural use under 342.0011(18), quail farm which sold the birds was entitled to the agricultural exemption of subsection (1) of this section and 342.650(5); case involving worker injured at farm was remanded back to Workers’ Compensation Board with directions to dismiss. Stidham v. Duncan, 931 S.W.2d 463, 1996 Ky. App. LEXIS 140 (Ky. Ct. App. 1996).

Injured employee was covered by the Kentucky Workers’ Compensation Act because the work the employee was performing was logging, which was not “agriculture” as that term was defined by KRS 342.0011(18). Although the work occurred on the employer’s farm, the logging was not connected to the day to day operations of the farm itself as the cut timber was commercially sold by the employer for profit. Commonwealth v. Gussler, 278 S.W.3d 153, 2008 Ky. App. LEXIS 251 (Ky. Ct. App. 2008).

5. Quantity of Business.

There is no judicial exception to coverage of workers’ compensation brought on by the infrequency of the employer’s business or by the difficulty of obtaining workers’ compensation insurance at a rate profitable to the business. Wright v. Fardo, 587 S.W.2d 269, 1979 Ky. App. LEXIS 467 (Ky. Ct. App. 1979).

6. State Agency.

Where claimant worked twenty hours per week at a state training facility as part of the federally-funded “Foster Grandparents” program, where she performed tasks in keeping with the goal of the facility and was paid at an hourly rate, and where the program was administered by an employee of the Department (now Cabinet) of Human Resources, which is a state agency, such claimant was an “employee” entitled to receive the benefits for work-related injuries provided by the Workers' Compensation Act. Sears v. Oakwood Training Facility Dep't of Human Resources, 623 S.W.2d 232, 1980 Ky. App. LEXIS 436 (Ky. Ct. App. 1980).

7. Nonresident Employer.

Out-of-state employers, insured or uninsured, are not exempted from coverage of the Workers’ Compensation Act; therefore, a nonresident employee of a nonresident, uninsured employer is covered by this state’s Workers’ Compensation Act when the employee sustains an injury by virtue of the employment in this state, and such nonresident is entitled to benefits from the uninsured employers’ fund. Bryant v. Jericol Mining, Inc., 758 S.W.2d 45, 1988 Ky. App. LEXIS 90 (Ky. Ct. App. 1988).

8. Governmental Entities.

KRS 342.0011(16), did not include governmental entities within the definition of a “person” because KRS 342.630 made it clear that the legislature intended not to include governmental entities within the term “person;” KRS 342.630 considers persons and governmental entities to be separate classes of employers subject to KRS Chapter 342. Davis v. Hensley, 256 S.W.3d 16, 2008 Ky. LEXIS 149 ( Ky. 2008 ).

County officials had no immunity as to an employee's claim of termination for filing a workers' compensation claim because (1) Ky. Rev. Stat. Ann. § 342.197(1) waived immunity as a matter of law, (2) the employee was a covered employee, (3) the county was a covered employer required to comply with applicable statutes, and (4) the Kentucky General Assembly broadly intended for there to be no distinction between government and private employees. Fields v. Benningfield, 2018 Ky. App. LEXIS 83 (Ky. Ct. App. Feb. 16, 2018), rev'd, in part, aff'd, 584 S.W.3d 731, 2019 Ky. LEXIS 371 ( Ky. 2019 ).

Ky. Rev. Stat. Ann. § 342.197 implicitly waived immunity for a county fiscal court, a county jailer in his official capacity, and another jailer in his official capacity because only the county fiscal court qualified as a deputy jailer’s employer; the county jailer and the other jailer were entitled to the same immunity, to the extent they were sued in their official capacities, and the waiver, therefore, applied to them as well. Benningfield v. Fields, 584 S.W.3d 731, 2019 Ky. LEXIS 371 ( Ky. 2019 ).

Cited:

Vater v. Newport Board of Education, 511 S.W.2d 670, 1974 Ky. LEXIS 506 ( Ky. 1974 ); Himes v. United States, — F.3d —, 645 F.3d 771, 2011 U.S. App. LEXIS 14293 (6th Cir. 2011).

Opinions of Attorney General.

Any employer, including a governmental unit, may become a self-insurer provided the employer shall present satisfactory proof of its solvency and ability to pay claims. OAG 72-810 .

Local officials considered to be in the service of the state for purposes of workers’ compensation coverage include: (1) property valuation administrators, (2) Circuit Court clerks and their deputies, (3) Circuit judges, (4) Commonwealth attorney, (5) master commissioners and receivers, and (6) sheriff, jailer and county court clerk in counties of 75,000 or more. OAG 72-830 .

The office of county judge (now county judge/executive), magistrate, county commissioner, county clerk, jailer, and sheriff are the responsibility of the county for workers’ compensation except for sheriffs, jailers and county court clerks in counties having a population of 75,000 or more. OAG 72-830 .

The state is required to pay awards or judgments in favor of state employees regardless of whether the state carries insurance or whether it acts as a self-insurer. OAG 73-28 .

The Workers’ Compensation Act does not exempt a religious organization from being an employer, if it has at least one covered employee, so that a church that pays a minister, a janitor or any other person who is employed by the religious or charitable organization would be required to cover such personnel under the Workers’ Compensation Act. OAG 73-73 .

Pursuant to this section and KRS 342.640 , the coverages of employer and employee of governmental entities are rather all-encompassing so that the Kentucky State Bar Association should be considered a state agency and the executive director and other employees are covered under the Workers’ Compensation Act. OAG 73-304 .

All officers and employees of Beechwood Village, whether part or full-time, whether elected or appointed, whether paid or volunteer, are required to be covered under the Workers’ Compensation Law and if they are injured in the scope of their employment and do not have coverage, the employer’s insurance fund would be responsible for the payment and it could then recover against the employer. OAG 73-511 .

The fiscal court of a county is mandatorily required to provide workers’ compensation insurance to cover the sheriff’s deputies who have been lawfully appointed and salaried. OAG 76-694 .

A city is mandatorily required to have workers’ compensation for all of its officers and employees whether they are paid by the city or not and the basis for determining their compensation would be the average weekly wage in their regular employment as set out in KRS 342.140 . OAG 77-642 .

A riverport authority organized and existing pursuant to KRS 65.510 to 65.650 is a covered employer under this section and mandatorily subject to the requirements of the Kentucky Workers’ Compensation Act and under 33 USCS § 903(a) (2) not subject to the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act when its specific though limited powers of government as a body politic and an autonomous public corporation acting pursuant to clearly defined public purposes are considered. OAG 79-277 .

A constable would be considered to be in the service of the county for purposes of workers’ compensation coverage. OAG 82-628 .

A county or fiscal court is required to carry insurance on constables where expressly required to do so by statute, for example, to carry workers’ compensation coverage for constables under this section, 342.640(3), and 64.530(2). OAG 95-11 .

Research References and Practice Aids

Kentucky Bench & Bar.

Joiner, Should Kentucky Student Athletes Be Covered by the Workers’ Compensation Statutes?, Vol. 50, No. 2, Spring 1986 Ky. Bench & B. 16.

Fogle, Workplace Injuries: Exclusive Remedy in the New Millennium, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 31.

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 64 Ky. L.J. 307 (1975-76).

Kentucky Law Survey, Basil, Workers’ Compensation, 69 Ky. L.J. 687 (1980-81).

Northern Kentucky Law Review.

Jackson and Crase, A Surveyof Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Master and Servant, § 282.00.

342.640. Coverage of employees.

The following shall constitute employees subject to the provisions of this chapter, except as exempted under KRS 342.650 :

  1. Every person, including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, express or implied, and all helpers and assistants of employees, whether paid by the employer or employee, if employed with the knowledge, actual or constructive, of the employer;
  2. Every executive officer of a corporation;
  3. Every person in the service of the state or any of its political subdivisions or agencies, or of any county, city of any class, school district, drainage district, tax district, public or quasipublic corporation, or other political entity, under any contract of hire, express or implied, and every official or officer of those entities, whether elected or appointed, while performing his official duties shall be considered an employee of the state. Every person who is a member of a volunteer ambulance service, fire, or police department shall be deemed, for the purposes of this chapter, to be in the employment of the political subdivision of the state where the department is organized. Every person who is a regularly-enrolled volunteer member or trainee of an emergency management agency, as established under KRS Chapters 39A to 39E, shall be deemed, for the purposes of this chapter, to be in the employment of this state. Every person who is a member of the Kentucky National Guard, while the person is on state active duty as defined in KRS 38.010(4), shall be deemed, for the purposes of this chapter, to be in the employment of this state; and
  4. Every person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury.

History. Enact. Acts 1972, ch. 78, § 4, effective January 1, 1973; 1976, ch. 161, § 3; 1986, ch. 271, § 1, effective July 15, 1986; 1987 (Ex. Sess.), ch. 1, § 52, effective October 26, 1987; 1992, ch. 307, § 11, effective April 9, 1992; 1996 (1st Ex. Sess.), ch. 1, § 28, effective December 12, 1996; 1998, ch. 226, § 110, effective July 15, 1998; 2014, ch. 23, § 1, effective July 15, 2014.

Legislative Research Commission Notes.

(12/12/96). 1996 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 28 stated that it is was amending this statute, but the proposed changes to the statute were eliminated by legislative action on this Act although the statute itself was not delected from the bill.

NOTES TO DECISIONS

  1. Construction.
  2. Applicability.
1. Construction.

KRS 342.316(3)(b) is not in conflict with KRS 342.610(1), 342.640(1), and 342.690(1)Mullins v. Manning Coal Corp., 938 S.W.2d 260, 1997 Ky. LEXIS 1 (Ky.), cert. denied, 521 U.S. 1119, 117 S. Ct. 2511, 138 L. Ed. 2d 1014, 1997 U.S. LEXIS 4077 (U.S. 1997).

KRS 342.395 does not draw a distinction between so-called innocent employees and executive officers who are employees pursuant to KRS 342.640(2). For any employee, including executive officers/owners, to validly reject the Workers’ Compensation Act, KRS 342.395 and 803 KAR 25:130, § 1 must be satisfied. Ky. Employers' Mut. Ins. v. J & R Mining, Inc., 2008 Ky. App. LEXIS 51 (Ky. Ct. App. Mar. 7, 2008), aff'd, 279 S.W.3d 513, 2009 Ky. LEXIS 77 ( Ky. 2009 ).

2. Applicability.

KRS 342.640 specifically deals with the definition of an employee within the context of the Workers’ Compensation Act; therefore, it prevails over provisions regarding employees in the Kentucky Education Reform Act, KRS ch. 160. Pike County Bd. of Educ. v. Mills, 260 S.W.3d 366, 2008 Ky. App. LEXIS 245 (Ky. Ct. App. 2008).

KRS 342.640(1) was not applicable as KRS 342.615(5) deemed a temporary help service to be a temporary employee’s employer, KRS 342.690(1) would not deem an injured permanent employee and the temporary employee to be co-employees, and therefore immunize the subcontractor and temporary employee from the permanent employee’s tort claim. Labor Ready, Inc. v. Johnston, 289 S.W.3d 200, 2009 Ky. LEXIS 153 ( Ky. 2009 ).

An unpaid officer of a nonprofit trade association is not an “employee” within the purview of this section. Kentucky Farm & Power Equipment Dealers Asso. v. Fulkerson Bros., Inc., 631 S.W.2d 633, 1982 Ky. LEXIS 241 ( Ky. 1982 ).

The threshold requirement in a compensation claim is that the claimant must be an employee for hire, as the essence of compensation protection is the restoration of a part of wages which are assumed to have existed. Kentucky Farm & Power Equipment Dealers Asso. v. Fulkerson Bros., Inc., 631 S.W.2d 633, 1982 Ky. LEXIS 241 ( Ky. 1982 ).

The workers’ compensation concept of employee is narrower than the common-law concept of “servant,” in the master and servant relationship, and implies that the service to be performed is under a contract of hire, express or implied. Compensation decisions uniformly excluded from the definition “employees” workers who neither receive nor expect to receive any kind of pay for their services. Kentucky Farm & Power Equipment Dealers Asso. v. Fulkerson Bros., Inc., 631 S.W.2d 633, 1982 Ky. LEXIS 241 ( Ky. 1982 ).

The proper legal analysis with regard to whether one is an employee requires consideration of at least four predominant factors: (1) the nature of the work as related to the business generally carried on by the alleged employer; (2) the extent of control exercised by the alleged employer; (3) the professional skill of the alleged employee; and (4) the true intent of the parties. The proper legal conclusions may not be drawn from consideration of one or two of these factors. Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 1991 Ky. LEXIS 22 ( Ky. 1991 ).

Newspaper carrier was an employee of newspaper within the meaning of Kentucky’s Workers’ Compensation Statute, despite a purchase agreement which attempted to render this section inapplicable, because an employer cannot by contrivance force an employee to work outside the protection of the Workers’ Compensation Statute, even if the employee acquiesces to the employer’s terms. Evansville Printing Corp. v. Sugg, 817 S.W.2d 455, 1991 Ky. App. LEXIS 116 (Ky. Ct. App. 1991).

Where claimant and employer entered into a specific written contract of employment containing clear and concise language that successful passage of a pre-employment physical was a prerequisite to the beginning of an employment relationship and where claimant procured the services of another individual to take his pre-employment physical examination, the terms of the agreement were not complied with, and the contract of employment was not consummated; therefore, claimant was precluded from maintaining a claim for workers’ compensation for an injury sustained while at work. Honaker v. Duro Bag Mfg. Co., 851 S.W.2d 481, 1993 Ky. LEXIS 70 ( Ky. 1993 ).

Administrative law judge erred in dismissing a claim for workers’ compensation benefits based upon a finding that the claimant had misrepresented her educational level on the employment application, thereby precluding the formation of a contract of employment. Clarion Mfg. Corp. of Am. v. Justice, 971 S.W.2d 288, 1998 Ky. LEXIS 43 ( Ky. 1998 ).

A participant in an apprenticeship program conducted by a plumbers’ union was not an “employee,” notwithstanding that he was paid for the on-the-job part of his apprenticeship program, where he was injured while being instructed in the classroom, an activity for which he received no remuneration. Jecker v. Plumbers' Local 107, 2 S.W.3d 107, 1999 Ky. App. LEXIS 117 (Ky. Ct. App. 1999).

Where it was undisputed that a claimant, during a tryout for a job with a logger, cut trees throughout the day of his injury; that the logger would owe him nothing if dissatisfied with his work; and that the logger did not indicate that he was dissatisfied with the claimant’s work or would not have hired him had he not been injured, the claimant was the logger’s employee under KRS 342.640(4). Hubbard v. Henry, 231 S.W.3d 124, 2007 Ky. LEXIS 169 ( Ky. 2007 ).

Trial court’s finding that an auction business had up-the ladder immunity in a claim brought by a worker allegedly injured by the negligence of a temporary employee working for the auction business was error because the auction business was a contractor and the temporary service was a subcontractor, and as a contractor, the auction business was liable to the temporary service’s employees for workers’ compensation, but was immune from civil suit by those employees. Johnston v. Labor Ready, Inc., 2007 Ky. App. Unpub. LEXIS 250 (Ky. Ct. App. Apr. 6, 2007), aff'd, 289 S.W.3d 200, 2009 Ky. LEXIS 153 ( Ky. 2009 ).

Band instructor who began working for a board of education under an oral contract and who was injured in the course of his duties was an “employee” under KRS 342.640 for purposes of workers’ compensation benefits even though the formalities of KRS 160.380 regarding his hiring (in particular, a contract signed by the board superintendent) were not completed until three months after the injury. Pike County Bd. of Educ. v. Mills, 260 S.W.3d 366, 2008 Ky. App. LEXIS 245 (Ky. Ct. App. 2008).

Because the decedent was a corporate officer of the employer, he was an employee pursuant to KRS 342.640 regardless of whether he was also a shareholder; further, KRS 342.375 required every workers’ compensation policy to cover an employer’s entire liability, and, as the administrative law judge found that the insurer failed to show that the employer filed a waiver of coverage with the Office of Workers’ Claims (now Department of Workers’ Claims) as required by KRS 342.395(1) and 803 KAR 25:130, § 1 before the injury, a policy endorsement that excluded the decedent from coverage was ineffective. Ky. Employers' Mut. Ins. v. J & R Mining, Inc., 279 S.W.3d 513, 2009 Ky. LEXIS 77 ( Ky. 2009 ).

Workers’ compensation claimant was properly found to be an employee of a construction company pursuant to KRS 342.640(1) because the tasks the claimant performed were within the scope of the employer’s business and did not require any special skill, the employer controlled the details of the claimant’s work, and the tasks the claimant performed, including sweeping and picking up trash, were necessary on construction sites. Abel Verdon Constr. v. Rivera, 2010 Ky. App. LEXIS 194 (Ky. Ct. App. Oct. 15, 2010), aff'd, 348 S.W.3d 749, 2011 Ky. LEXIS 116 ( Ky. 2011 ).

In a workers’ compensation case, there was no error in determining that an unauthorized minor alien was an employee where the minor was paid cash for picking up trash at a construction site during vacation. An administrative law judge determined that an employment relationship existed based on findings that the work as a site maintenance person was within the scope of the employer’s business constructing homes, the employer controlled the work being performed, and the work did not require any particular skill. Abel Verdon Constr. v. Rivera, 348 S.W.3d 749, 2011 Ky. LEXIS 116 ( Ky. 2011 ).

4. Compensable Employment.

The basic ingredient of compensable employment under this act being contract of hire, express or implied, an inmate is not entitled to workers’ compensation benefits for injury suffered while working in the prison because a convict could not and did not enter into a true contract of hire with authorities by whom he was confined. Tackett v. Lagrange Penitentiary, 524 S.W.2d 468, 1975 Ky. LEXIS 110 ( Ky. 1975 ).

Where three employees were instructed by their foreman to detour from their customary route of travel to work in order to pick up a company truck to be driven to the work site, a disabling injury suffered by one employee as a result of an accident during the business detour was work related and compensable. N. H. Stone Co. v. Harris, 531 S.W.2d 513, 1975 Ky. LEXIS 42 ( Ky. 1975 ).

Where a contractor had taught an assistant the electric wiring trade by instructing him on the job, the contractor procured the home improvement jobs, he only decided whether he needed aid after he had begun an electrical project, the contractor determined whether the assistant worked at all, and the assistant served as a helper to the contractor and followed his instructions, no other inference can be drawn than that the assistant was an employee. Wright v. Fardo, 587 S.W.2d 269, 1979 Ky. App. LEXIS 467 (Ky. Ct. App. 1979).

Where claimant worked twenty hours per week at a state training facility as part of the federally-funded “Foster Grandparents” program, where she performed tasks in keeping with the goal of the facility and was paid at an hourly rate, and where the program was administered by an employee of the Department (now Cabinet) of Human Resources, which is a state agency, such claimant was an “employee” entitled to receive the benefits for work-related injuries provided by the Workers' Compensation Act. Sears v. Oakwood Training Facility Dep't of Human Resources, 623 S.W.2d 232, 1980 Ky. App. LEXIS 436 (Ky. Ct. App. 1980).

Before there can be an employer-employee relationship there must be a contract of hire, expressed or implied. The fact that claimant signed employment documents for general contractor and received his paycheck from general contractor negates any contract of hire on the bypass job between claimant and subcontractor; general contractor retained the right of control by having on the job its general superintendent, who had complete overall authority over the job, and by virtue of the fact that its right to cease paying claimant gave effective control over claimant. Smith Concerete, Inc. v. Mountain Enterprises, Inc., 833 S.W.2d 808, 1992 Ky. LEXIS 70 ( Ky. 1992 ).

Remuneration is an essential element if an apprentice is to be provided with compensation protection. Salvation Army v. Mathews, 847 S.W.2d 751, 1993 Ky. App. LEXIS 19 (Ky. Ct. App. 1993).

“Training” and “control” are sufficiently dissimilar from the advantages set out in KRS 342.0011(17) as to remove individuals receiving such aid from the definition of a compensable employee or apprentice. Salvation Army v. Mathews, 847 S.W.2d 751, 1993 Ky. App. LEXIS 19 (Ky. Ct. App. 1993).

Claimant, who was injured while participating in a national volunteer program, was not exempt from workers’ compensation coverage under KRS 342.650(3) because the value of in cash and in kind payment for his work far exceeded what was necessary for him to subsist; thus, the claimant was covered under KRS 342.640(4). Anderson v. Homeless & Housing COA, 135 S.W.3d 405, 2004 Ky. LEXIS 123 ( Ky. 2004 ).

Because a worker and a logger agreed that the worker would be paid for the worker’s service if it proved to be satisfactory, KRS 342.640(2) provided workers’ compensation coverage for the worker’s injury during the trial period even though an employment agreement had not been executed and wages had not been fixed. Hubbard v. Henry, 2006 Ky. App. Unpub. LEXIS 47 (Ky. Ct. App. Sept. 8, 2006), aff'd, 231 S.W.3d 124, 2007 Ky. LEXIS 169 ( Ky. 2007 ).

5. No Judicial Exception.

There is no judicial exception to coverage of workers’ compensation brought on by the infrequency of the employer’s business or by the difficulty of obtaining workers’ compensation insurance at a rate profitable to the business. Wright v. Fardo, 587 S.W.2d 269, 1979 Ky. App. LEXIS 467 (Ky. Ct. App. 1979).

6. National Guard.

Notwithstanding the provisions of this statute, member of national guard who at time of injury was entitled to receive federal pay was not on “active state service” nor entitled to receive workers’ compensation benefits. Kentucky Nat'l Guard v. Bayles, 535 S.W.2d 234, 1976 Ky. LEXIS 90 ( Ky. 1976 ).

7. County Jail Personnel.

It is implicit in the provision of this section that the “executive officer of a corporation” referred to is an employee for hire, and the reference does not apply to a volunteer or honorary employee. Kentucky Farm & Power Equipment Dealers Asso. v. Fulkerson Bros., Inc., 631 S.W.2d 633, 1982 Ky. LEXIS 241 ( Ky. 1982 ).

County officials had no immunity as to an employee's claim of termination for filing a workers' compensation claim because (1) Ky. Rev. Stat. Ann. § 342.197(1) waived immunity as a matter of law, (2) the employee was a covered employee, (3) the county was a covered employer required to comply with applicable statutes, and (4) the Kentucky General Assembly broadly intended for there to be no distinction between government and private employees. Fields v. Benningfield, 2018 Ky. App. LEXIS 83 (Ky. Ct. App. Feb. 16, 2018), rev'd, in part, aff'd, 584 S.W.3d 731, 2019 Ky. LEXIS 371 ( Ky. 2019 ).

Ky. Rev. Stat. Ann. § 342.197 implicitly waived immunity for a county fiscal court, a county jailer in his official capacity, and another jailer in his official capacity because only the county fiscal court qualified as a deputy jailer’s employer; the county jailer and the other jailer were entitled to the same immunity, to the extent they were sued in their official capacities, and the waiver, therefore, applied to them as well. Benningfield v. Fields, 584 S.W.3d 731, 2019 Ky. LEXIS 371 ( Ky. 2019 ).

8. Nonresident Employee.

A nonresident employee of a nonresident, uninsured employer is covered by this state’s Workers’ Compensation Act when the employee sustains an injury by virtue of the employment in this state, and such nonresident is entitled to benefits from the uninsured employers’ fund. Bryant v. Jericol Mining, Inc., 758 S.W.2d 45, 1988 Ky. App. LEXIS 90 (Ky. Ct. App. 1988).

9. Prisoner.

It is implicit that subdivision (4) of this section refers to service for an employer for hire; a prisoner of the Commonwealth, even though he or she performs some work for the Commonwealth, is not an employee of the Commonwealth. Commonwealth, Dep't of Education, Div. of Surplus Properties v. Smith, 759 S.W.2d 56, 1988 Ky. LEXIS 52 ( Ky. 1988 ).

10. Student Trainees.

Workers’ compensation benefits are not available to unremunerated student trainees. Salvation Army v. Mathews, 847 S.W.2d 751, 1993 Ky. App. LEXIS 19 (Ky. Ct. App. 1993).

11. Retirement of Employee.

Voluntary retirement and removal from the labor market in no way extinguishes or limits the right to workers’ compensation benefits. Inland Steel C. v. Terry, 464 S.W.2d 284, 1970 Ky. LEXIS 102 ( Ky. 1970 ) (decided under prior law).

12. Agriculture.

Injured employee was covered by the Kentucky Workers’ Compensation Act because the work the employee was performing was logging, which was not “agriculture” as that term was defined by KRS 342.0011(18). Although the work occurred on the employer’s farm, the logging was not connected to the day to day operations of the farm itself as the cut timber was commercially sold by the employer for profit. Commonwealth v. Gussler, 278 S.W.3d 153, 2008 Ky. App. LEXIS 251 (Ky. Ct. App. 2008).

Cited:

M.J. Daly Co. v. Varney, 695 S.W.2d 400, 1985 Ky. LEXIS 226 ( Ky. 1985 ), overruled, United States Fid. & Guar. Co. v. Technical Minerals, 934 S.W.2d 266, 1996 Ky. LEXIS 117 ( Ky. 1996 ), overruled in part as stated, Labor Ready, Inc. v. Johnston, 289 S.W.3d 200, 2009 Ky. LEXIS 153 ( Ky. 2009 ); Sublett v. Tennessee Valley Authority, 726 F. Supp. 1077, 1989 U.S. Dist. LEXIS 15284 (W.D. Ky. 1989 ).

Opinions of Attorney General.

County road employees, county hospital employees and volunteers of the fire district are covered employees unless they choose to be excluded under subsection (6) of KRS 342.650 . OAG 72-832 .

A mayor and members of a city council would be covered while performing their official duties. OAG 72-834 .

An autonomous fire protection district organized under the provisions of KRS Chapter 75 is an autonomous taxing district within the meaning of Const., § 157 and, therefore, for purposes of this section such a district would be the “political subdivision” rather than the county in which the district is located. OAG 72-835 .

This section would cover a county rescue squad which operates as a nonprofit organization and does volunteer fire fighting and emergency work and which is funded primarily from private donations. OAG 72-836 .

A merchant policeman employed by an association of merchants and property to guard the various properties of the membership would be eligible to be covered under workers’ compensation. OAG 73-19 .

All volunteer firemen are included in workers’ compensation coverage, the premium cost of which is borne by the state, but such benefits may be supplemented by additional private insurance up to or in excess of their average earnings in regular employment. OAG 73-72 .

Where a real estate salesman receives his salary as a commission on each sale, obtains a license from the real estate commission in order to operate, has no fixed hours of work, is not controlled as to whom he does or does not see, and splits his commission with his broker in return for office space, telephone, and advertising, the salesman is not an employee of the broker but an independent contractor and is not required to be covered under the Workers’ Compensation Act. OAG 73-112 .

Pursuant to this section and KRS 342.630 , the coverages of employer and employee of governmental entities are rather all-encompassing so that the Kentucky State Bar Association should be considered a state agency and the executive director and other employees are covered under the Workers’ Compensation Act. OAG 73-304 .

All officers and employees of Beechwood Village, whether part or full-time, whether elected or appointed, whether paid or volunteer, are required to be covered under the Workers’ Compensation Law and if they are injured in the scope of their employment and do not have coverage, the employer’s insurance fund would be responsible for the payment and it could then recover against the employer. OAG 73-511 .

It seems clear that for workers’ compensation purposes the state is the employer of civil defense workers, whether fully or partially paid or unpaid, and the cost of such coverage should be borne by the state. OAG 73-633 .

Workers’ compensation must be maintained on a chief of police, mayor, councilman or any other person in the employ of a city, whether full or part time. OAG 74-602 .

It is mandatory for elected county officials to be covered under workers’ compensation unless they elect to exclude themselves pursuant to KRS 342.650(6). OAG 74-610 , withdrawing OAG 60-989 .

A “person” would include a woman as well as a man, and therefore volunteer firewomen are also covered by workers’ compensation if the personnel belonging to the rescue unit are employees of the volunteer fire department. OAG 75-515 .

Those classes of volunteers not enumerated in subsection (3), such as volunteer ambulance personnel, are not covered by workers’ compensation. OAG 76-21 .

Vocational and industrial arts students are not employees and therefore are not required to be covered under the Kentucky Workers’ Compensation Act. OAG 76-388 .

A legally appointed deputy sheriff who is filling a deputy position authorized by the fiscal court, and who incurs a work connected injury or disability or medical expenses, should file a claim within the framework of the workers’ compensation provisions rather than receiving a direct payment from the general funds of the county for expenses incurred as a result of a work connected injury. OAG 77-140 .

The Workers’ Compensation Board could not issue a certificate of compliance for an employer who has no workers’ compensation coverage, either with an insurance company or as a self insurer, even though that employer’s present employees chose not to be covered since such an employer would need coverage for such contingencies as new employees not rejecting the act, old employees rescinding prior rejections and employees whose rejection was subsequently adjudicated as not having been given voluntarily or effectively pursuant to KRS 342.395 and persons adjudicated employees that the employer considered to be independent contractors. In such case where there has been noncompliance the Board could utilize procedures set out in KRS 342.402 seeking a temporary restraining order or temporary and/or permanent injunction against the employer in the Franklin Circuit Court. OAG 77-527 .

A fire fighter in the employ of a fire protection district is automatically covered under workers’ compensation; if the employee had an active prior disability at the time of his hiring by the fire district, then under KRS 342.120(3) the fire district is only responsible for the degree of injury which results while in its employ and is not responsible for that part of the employee’s disability which is attributable to his prior injury, and the fire fighter cannot sue the district at common law for his job-related injury because of KRS 342.690 , unless the district fails to secure compensation insurance or be a self-insurer, or the fire fighter opts out of workers’ compensation under KRS 342.650(6) and rules of the Workers’ Compensation Board. OAG 80-370 .

All fire fighters, whether they are city, county, fire district, paid or volunteer fire personnel, are subject to the provisions of the Workers’ Compensation Act (KRS Chapter 342). OAG 80-635 .

Where the firemen are volunteer and receive no regular salary or hourly rate, but do receive an expense allowance of $11 per run, the receipt of an expense allowance does not preclude the volunteer firemen from being covered by the state workers’ compensation insurance program for volunteer firemen; however, the program does not cover the chief and assistant chief, who are regularly paid members of the fire district. OAG 80-635 .

For the purpose of obtaining employee fringe benefits, the county is responsible for paying on behalf of jail personnel, as county employees, social security payments (KRS Ch. 61), workers’ compensation premiums (KRS Ch. 342), unemployment insurance premiums (KRS Ch. 341) and medical insurance coverage (KRS Ch. 67). OAG 82-346 .

A constable is clearly a covered “employee” under workers’ compensation and would be considered to be in the service of the county. OAG 82-628 .

Pursuant to subdivision (3) of this section, workers’ compensation applies to special deputy sheriffs, appointed under KRS 70.045 during emergencies, since they are in the service of a political subdivision, i.e., the county, although a special deputy could elect not to be covered; the fiscal court is responsible for providing workers’ compensation insurance coverage, unless it elects to be a self-insurer, the premium being paid as properly budgeted under the procedure outlined in KRS Ch. 68. OAG 83-301 .

The employees of the Disaster and Emergency Services, Department of Military Affairs, are covered by the workers’ compensation program at all times while acting under the direction of the Disaster and Emergency Services chain of command; however, if, for example, one city or county, not under direct state supervision furnishes aid to another city or county and an employee of the furnishing unit of government is injured, the receiving unit of government would be liable for the worker’s compensation under KRS 39.415 , 39.417 , and 39.418 . OAG 83-426 .

Persons employed by a housing agency on a voluntary work release program are not subject to workers’ compensation. OAG 84-120 .

A county or fiscal court is required to carry insurance on constables where expressly required to do so by statute, for example, to carry workers’ compensation coverage for constables under KRS 342.630(2), this section, and 64.530(2). OAG 95-11 .

Research References and Practice Aids

Kentucky Bench & Bar.

Schabell, Case Development for the Plaintiff in Workers’ Compensation Cases, Vol. 50, No. 2, Spring 1986 Ky. Bench & B. 20.

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 65 Ky. L.J. 411 (1976-77).

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Baugh, Worker’s Compensation: Temporary Employees and the Exclusiveness-of-Remedy Provisions, 86 Ky. L.J. 1 (1997-98).

Northern Kentucky Law Review.

Jackson and Crase, A Surveyof Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

342.650. Exemptions of particular classes of employees from coverage.

The following employees are exempt from the coverage of this chapter:

  1. Any person employed as a domestic servant in a private home by an employer who has less than two (2) employees each regularly employed forty (40) or more hours a week in domestic servant employment;
  2. Any person employed, for not exceeding twenty (20) consecutive work days, to do maintenance, repair, remodeling, or similar work in or about the private home of the employer, or if the employer has no other employees subject to this chapter, in or about the premises where that employer carries on his or her trade, business, or profession;
  3. Any person performing services in return for aid or sustenance only, received from any religious or charitable organization;
  4. Any person for whom a rule of liability for injury or death is provided by the laws of the United States, except those persons covered under Title IV, Public Law 91-173, 91st Congress, commonly referred to as the Black Lung Benefits of the Federal Coal Mine Health and Safety Act of 1969, or as amended;
  5. Any person employed in agriculture;
  6. Any person who would otherwise be covered but who elects not to be covered in accordance with the administrative regulations promulgated by the commissioner;
  7. Any person participating as a driver or passenger in a voluntary vanpool or carpool program while that person is on the way to or from his or her place of employment. For the purposes of this subsection, carpool or vanpool means any method by which two (2) or more employees are transported from their residences to their places of employment;
  8. Members of a religious sect or division that is an adherent of established tenets or teachings by reason of which members are conscientiously opposed to acceptance of the benefits of any public or private insurance which makes payments in the event of death, disability, old age, or retirement, or makes payments toward the cost of, or provides services for, medical bills, including the benefits of any insurance system established by the Federal Social Security Act, 42 U.S.C. secs. 301 et seq., and it is the practice, and has been for ten (10) or more years, for members of the sect or division to make reasonable provision for their dependent members;
  9. Any licensed or unlicensed, commissioned, ordained or unordained, or lay minister of religion who has no set oral or written agreement with a church or religious organization to receive a fixed regular payment for services provided to the church or who works no more than ten (10) hours per week;
  10. Any caretaker of a cemetery or property owned or operated by a church or religious organization who provides general cleanup services, including but not limited to mowing, raking, dusting, sweeping, and mopping which could be performed for other individuals or organizations, who works no more than ten (10) hours per week; and
  11. A direct seller as defined in Section 3508(b)(2) of the Internal Revenue Code of 1986.

History. Enact. Acts 1972, ch. 78, § 5; 1978, ch. 102, § 7, effective June 17, 1978; 1994, ch. 181, Part 15, § 92, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 81, effective December 12, 1996; 2010, ch. 24, § 1837, effective July 15, 2010; 2017 ch. 85, § 1, effective June 29, 2017; 2020 ch. 2, § 2, effective July 15, 2020.

Compiler’s Notes.

Title IV, Public Law 91-173, referred to herein, is compiled as 30 USCS §§ 901-945.

NOTES TO DECISIONS

  1. Coercion by Employer.
  2. Nonexempt.
  3. Agriculture.
  4. Aid or Sustenance Exception.
  5. Domestic Employment.
  6. No Voluntary Coverage.
1. Coercion by Employer.

An employer cannot by contrivance force an employ to work, outside the protection of the Workers’ Compensation Act, even if the employee acquiesces in the employer’s terms. Husman Snack Foods Co. v. Dillon, 591 S.W.2d 701, 1979 Ky. App. LEXIS 494 (Ky. Ct. App. 1979).

2. Nonexempt.

There is no judicial exception to coverage of workers’ compensation brought on by the infrequency of the employer’s business or by the difficulty of obtaining workers’ compensation insurance at a rate profitable to the business. Wright v. Fardo, 587 S.W.2d 269, 1979 Ky. App. LEXIS 467 (Ky. Ct. App. 1979).

Where a contractor had taught an assistant the electric wiring trade by instructing him on the job, the contractor procured the home improvement jobs, he only decided whether he needed aid after he had begun an electrical project, the contractor determined whether the assistant worked at all, and the assistant served as a helper to the contractor and followed his instructions, no other inference can be drawn than that the assistant was an employee. Wright v. Fardo, 587 S.W.2d 269, 1979 Ky. App. LEXIS 467 (Ky. Ct. App. 1979).

Workers' Compensation Board properly reversed the ALJ's application of Ky. Rev. Stat. Ann. § 342.650(2) to bar a claimant from receiving compensation benefits where there was clearly an implied, if not express, agreement that the claimant was to provide services to the employer in exchange for remuneration, although the claimant performed some maintenance and repair work, his employment entailed woodworking, and the employer's business was refurbishing furniture for customers. Podgursky v. Decker, 520 S.W.3d 763, 2016 Ky. App. LEXIS 179 (Ky. Ct. App. 2016).

3. Agriculture.

It is the nature of the work, rather than the nature of the employment or employer, that determines whether an employee is covered by the Workers’ Compensation Law, and agricultural work is exempt, though commercial in nature. Robinson v. Lytle, 276 Ky. 397 , 124 S.W.2d 78, 1938 Ky. LEXIS 554 ( Ky. 1938 )(decided under prior law).

An employee who is injured while performing a service normally agricultural but actually performed in furtherance of a business covered by the law and the employer’s policy of insurance is covered under this chapter. Bob White Packing Co. v. Hardy, 340 S.W.2d 245, 1960 Ky. LEXIS 29 ( Ky. 1960 )(decided under prior law).

Injured employee was covered by the Kentucky Workers’ Compensation Act because the work the employee was performing was logging, which was not “agriculture” as that term was defined by KRS 342.0011(18). Although the work occurred on the employer’s farm, the logging was not connected to the day to day operations of the farm itself as the cut timber was commercially sold by the employer for profit. Commonwealth v. Gussler, 278 S.W.3d 153, 2008 Ky. App. LEXIS 251 (Ky. Ct. App. 2008).

The agricultural exemption to the Workers’ Compensation Act in this section and KRS 342.620 (now KRS 342.0011 ) includes the conditioning and exercising of racehorses which have been released to the track, but have returned to the farm for rehabilitation from an injury. Michael v. Cobos, 744 S.W.2d 419, 1987 Ky. LEXIS 265 ( Ky. 1987 ).

Because sale of quail to hunting preserves to be hunted was an agricultural use under 342.0011(18), quail farm which sold the birds was entitled to the agricultural exemption of KRS 342.630(1) and subsection (5) of this section; case involving worker injured at farm was remanded back to Workers’ Compensation Board with directions to dismiss. Stidham v. Duncan, 931 S.W.2d 463, 1996 Ky. App. LEXIS 140 (Ky. Ct. App. 1996).

4. Aid or Sustenance Exception.

Claimant, who was injured while participating in a national volunteer program, was not exempt from workers’ compensation coverage under KRS 342.650(3) because the value of in cash and in kind payment for his work far exceeded what was necessary for him to subsist; thus, the claimant was covered under KRS 342.640(4). Anderson v. Homeless & Housing COA, 135 S.W.3d 405, 2004 Ky. LEXIS 123 ( Ky. 2004 ).

Under KRS 342.0011(17) and KRS 342.140(6), the term “wages” takes into account items that are reported on the employee’s income tax returns. Regardless of whether an individual is paid in cash or in kind, the value of the compensation must be considered when determining whether the individual had received “aid or sustenance only” in return for work, and, likewise, if an individual is compensated, it is immaterial under KRS 342.650(3) that the individual or the organization for which he works considers him to be a “volunteer.” Anderson v. Homeless & Housing COA, 135 S.W.3d 405, 2004 Ky. LEXIS 123 ( Ky. 2004 ).

5. Domestic Employment.

Maid working at a large hotel was not engaged in domestic employment but industrial employment. Barres v. Watterson Hotel Co., 196 Ky. 100 , 244 S.W. 308, 1922 Ky. LEXIS 469 ( Ky. 1922 ) (decided under prior law).

6. No Voluntary Coverage.

General Assembly intended to exempt any worker from Kentucky’s Workers’ Compensation Act when his injury was covered by a federal workers’ compensation scheme, unless the employer provided voluntary coverage; since the employee was covered under the LHWCA, he was exempt from the workers’ compensation laws unless the employer provided him voluntary coverage, and there was insufficient evidence to prove that the employer provided voluntary workers’ compensation coverage. Morris v. Owensboro Grain Co., LLC, 407 S.W.3d 559, 2013 Ky. LEXIS 379 ( Ky. 2013 ).

Cited:

Sears v. Oakwood Training Facility Dep’t of Human Resources, 623 S.W.2d 232, 1980 Ky. App. LEXIS 436 (Ky. Ct. App. 1980); Haney v. Butler, 990 S.W.2d 611, 1999 Ky. LEXIS 14 ( Ky. 1999 ).

Opinions of Attorney General.

The county extension agent is covered by the federal government under the federal employees liability act and would be exempt from the Kentucky Workers’ Compensation Law but their secretaries and clerical personnel who are employed through the University of Kentucky are not covered by the federal act and would be covered by the state under its workers’ compensation policy. OAG 73-90 .

It is mandatory for elected county officials to be covered under workers’ compensation unless they elect to exclude themselves pursuant to subsection (6) of this section. OAG 74-610 , withdrawing OAG 60-989 .

The Workers’ Compensation Board could not issue a certificate of compliance for an employer who has no workers’ compensation coverage, either with an insurance company or as a self insurer, even though that employer’s present employees chose not to be covered since such an employer would need coverage for such contingencies as new employees not rejecting the act, old employees rescinding prior rejections and employees whose rejection was subsequently adjudicated as not having been given voluntarily or effectively pursuant to KRS 342.395 and persons adjudicated employees that the employer considered to be independent contractors. In such case where there has been noncompliance with the Board could utilize procedures set out in KRS 342.402 seeking a temporary restraining order or temporary and/or permanent injunction against the employer in the Franklin Circuit Court. OAG 77-527 .

Since the Workers’ Compensation Act limits the right to recover to certain sums and in a certain manner, any law which did not give the employee the right to choose not to accept the act might be in violation of Const., § 54. OAG 79-584 .

A fire fighter in the employ of a fire protection district is automatically covered under workers’ compensation; if the employee had an active prior disability at the time of his hiring by the fire district, then under KRS 342.120(3) the fire district is only responsible for the degree of injury which results while in its employ and is not responsible for that part of the employee’s disability which is attributable to his prior injury, and the fire fighter cannot sue the district at common law for his job-related injury because of KRS 342.690 , unless the district fails to secure compensation insurance or be a self-insurer, or the fire fighter opts out of workers’ compensation under this section and rules of the Workers’ Compensation Board. OAG 80-370 .

Under KRS 342.640(3), workers’ compensation applies to special deputy sheriffs, appointed under KRS 70.045 during emergencies, since they are in the service of a political subdivision, i.e., the county, although a special deputy could elect not to be covered; the fiscal court is responsible for providing workers’ compensation insurance coverage, unless it elects to be a self-insurer, the premium being paid as properly budgeted under the procedure outlined in KRS Ch. 68. OAG 83-301 .

Medicaid recipients employing service providers under KRS 205.5606 are exempt from the requirements of KRS Chapter 342 by virtue of KRS 205.5607 , even though such providers might not be considered “domestic servants” under KRS 342.650(1). OAG 2007-01 .

Research References and Practice Aids

Kentucky Bench & Bar.

Schabell, Case Development for the Plaintiff in Workers’ Compensation Cases, Vol. 50, No. 2, Spring 1986 Ky. Bench & B. 20.

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 65 Ky. L.J. 411 (1976-77).

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

Baugh, Worker’s Compensation: Temporary Employees and the Exclusiveness-of-Remedy Provisions, 86 Ky. L.J. 1 (1997-98).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Master and Servant, § 282.00.

342.660. Voluntary coverage.

  1. An employer that has in its employment any employee exempted under KRS 342.650 may elect to be subject to this chapter. This election on the part of the employer shall be made by the employer securing the payment of compensation to these exempted employees in accordance with KRS 342.340 . Any employee, otherwise exempted under KRS 342.650 , of the employer shall be deemed to have elected to come under this chapter, if at the time of the injury for which liability is claimed, his or her employer has in force an election to be subject to this chapter with respect to the employment in which the employee was injured and the employee has not, either upon entering into employment or within five (5) days after the filing of an election by the employer , given to his or her employer and to the commissioner notice in writing that he or she elects not to be subject to this chapter.
  2. An employer within the scope of subsection (1) of this section, within five (5) days after securing the payment of compensation in accordance with KRS 342.340 , shall give the commissioner written notice of its election to be subject to this chapter. The employer shall post and keep posted on the premises where any employee or employees, otherwise exempted under KRS 342.650 , works, printed notices furnished by the commissioner stating its acceptance of this chapter. Failure to give the notices required by this paragraph shall not void or impair the employer’s election to be subject to or relieve it of any liability under this chapter.
  3. Any employer who has complied with subsection (2) of this section may withdraw its acceptance of this chapter, by filing written notice with the commissioner of the withdrawal of its acceptance. A withdrawal shall become effective 60 days after the filing of notice or on the date of the termination of the security for payment of compensation, whichever last occurs. The withdrawal shall not be effective until the employer shall theretofore post notice of the withdrawal where the affected employee or employees work or shall otherwise notify the employees of withdrawal.

History. Enact. Acts 1972, ch. 78, § 6; 1994, ch. 181, Part 15, § 93, effective April 4, 1994; 2010, ch. 24, § 1838, effective July 15, 2010.

NOTES TO DECISIONS

1. No Voluntary Coverage.

General Assembly intended to exempt any worker from Kentucky’s Workers’ Compensation Act when his injury was covered by a federal workers’ compensation scheme, unless the employer provided voluntary coverage; since the employee was covered under the LHWCA, he was exempt from the workers’ compensation laws unless the employer provided him voluntary coverage, and there was insufficient evidence to prove that the employer provided voluntary workers’ compensation coverage. Morris v. Owensboro Grain Co., LLC, 407 S.W.3d 559, 2013 Ky. LEXIS 379 ( Ky. 2013 ).

342.670. Extraterritorial coverage.

  1. If an employee, while working outside the territorial limits of this state, suffers an injury on account of which the employee, or in the event of the employee’s death, his or her dependents, would have been entitled to the benefits provided by this chapter had that injury occurred within this state, that employee, or in the event of the employee’s death resulting from that injury, his or her dependents, shall be entitled to the benefits provided by this chapter, if at the time of the injury:
    1. His or her employment is principally localized in this state; or
    2. He or she is working under a contract of hire made in this state in employment not principally localized in any state; or
    3. He or she is working under a contract of hire made in this state in employment principally localized in another state whose workers’ compensation law is not applicable to his or her employer; or
    4. He or she is working under a contract of hire made in this state for employment outside the United States and Canada.
  2. The payment or award of benefits under the workers’ compensation law of another state, territory, province, or foreign nation to an employee or his or her dependents otherwise entitled on account of such injury or death to the benefits of this chapter shall not be a bar to a claim for benefits under this chapter, if a claim under this chapter is filed within two (2) years after that injury or death. If compensation is paid or awarded under this chapter:
    1. The medical and related benefits furnished or paid for by the employer under another jurisdiction’s workers’ compensation law on account of such injury or death shall be credited against the medical and related benefits to which the employee would have been entitled under this chapter had claim been made solely under this chapter;
    2. The total amount of all income benefits paid or awarded the employee under another jurisdiction’s workers’ compensation law shall be credited against the total amount of income benefits which would have been due the employee under this chapter, had claim been made solely under this chapter; and
    3. The total amount of death benefits paid or awarded under another jurisdiction’s workers’ compensation law shall be credited against the total amount of death benefits due under this chapter.
  3. If any employee is entitled to the benefits of this chapter by reason of an injury sustained in this state in employment by an employer who is domiciled in another state and who has not secured the payment of compensation as required by this chapter, the employer or his carrier may file with the commissioner a certificate, issued by the commission or agency of the other state having jurisdiction over workers’ compensation claims, certifying that the employer has secured the payment of compensation under the workers’ compensation law of the other state and that with respect to the injury the employee is entitled to the benefits provided under that law, and that the benefits to which the employee or his or her dependents is entitled are at least as great as those to which he or she would be entitled if the injury occurred and was processed under Kentucky law, under Kentucky coverage. In this event:
    1. The filing of the certificate shall constitute an appointment by the employer or his carrier of the commissioner as his or her agent for acceptance of the service of process in any proceeding brought by the employee or his or her dependents to enforce his, her, or their rights under this chapter on account of the injury;
    2. The commissioner shall send to the employer or carrier, by certified mail to the address shown on the certificate, a true copy of any notice of claim or other process served on the commissioner by the employee or his or her dependents in any proceeding brought to enforce his, her, or their rights under this chapter;
      1. If the employer is a qualified self-insurer under the workers’ compensation law of the other state, the employer shall, upon submission of evidence satisfactory to the commissioner, of its ability to meet its liability to the employee under this chapter, be deemed to be a qualified self-insurer under this chapter; (c) 1. If the employer is a qualified self-insurer under the workers’ compensation law of the other state, the employer shall, upon submission of evidence satisfactory to the commissioner, of its ability to meet its liability to the employee under this chapter, be deemed to be a qualified self-insurer under this chapter;
      2. If the employer’s liability under the workers’ compensation law of the other state is insured, the employer’s carrier, as to the employee or his or her dependents only, shall be deemed to be an insurer authorized to write insurance under and be subject to this chapter; however, unless its contract with the employer requires it to pay an amount equivalent to the compensation benefits provided by this chapter, its liability for income benefits or medical and related benefits shall not exceed the amounts of the benefits for which the insurer would have been liable under the workers’ compensation law of the other state;
    3. If the total amount for which the employer’s insurance is liable under (c) above is less than the total of the compensation benefits to which the employee is entitled under this chapter, the commissioner may, if he or she deems it necessary, require the employer to file security, satisfactory to the commissioner, to secure the payment of benefits due the employee or his or her dependents under this chapter; and
    4. Upon compliance with the preceding requirements of this subsection (3), the employer, as to the employee only, shall be deemed to have secured the payment of compensation under this chapter.
  4. Any professional athlete, coach, or trainer who has been hired outside this Commonwealth by an employer domiciled in a foreign state, including professional baseball, basketball, football, and ice-hockey clubs, is exempted from the provisions of this chapter while that employee is temporarily within this Commonwealth doing work for the employer, if the foreign employer has secured workers’ compensation insurance coverage under the workers’ compensation law of the foreign state, so as to cover the employee’s employment while in this Commonwealth. The benefits under the workers’ compensation law of the foreign state shall be the exclusive remedy against that employer and any affiliated club for any injury, whether resulting in death or not, received by any employee while working for that employer in this Commonwealth.
  5. As used in this section:
    1. “United States” includes only the states of the United States and the District of Columbia;
    2. “State” includes any state of the United States, the District of Columbia, or any province of Canada;
    3. “Carrier” includes any insurance company licensed to write workers’ compensation insurance in any state of the United States or any state or provincial fund which insures employers against their liabilities under a workers’ compensation law;
    4. A person’s employment is principally localized in this or another state when:
      1. His or her employer has a place of business in this or the other state and he or she regularly works at or from that place of business, or
      2. If subparagraph 1. foregoing is not applicable, he or she is domiciled and spends a substantial part of his or her working time in the service of his or her employer in this or the other state;
    5. An employee whose duties require him or her to travel regularly in the service of his or her employer in this and one (1) or more other states may, by written agreement with his or her employer, provide that his or her employment is principally localized in this or another state, and, unless the other state refuses jurisdiction, the agreement shall be given effect under this chapter;
    6. “Workers’ compensation law” includes “occupational disease law.”

History. Enact. Acts 1972, ch. 78, § 7; 1974, ch. 191, § 2; 1980, ch. 114, § 95, effective July 15, 1980; 1994, ch. 181, Part 15, § 94, effective April 4, 1994; 1996, ch. 355, § 1, effective July 15, 1996; 2010, ch. 24, § 1839, effective July 15, 2010.

NOTES TO DECISIONS

  1. In General.
  2. Application.
  3. Place of Contract.
  4. Principally Localized.
  5. Payments from Another State.
  6. Out-of-State Injury.
  7. — Double Claim.
  8. Subrogation.
1. In General.

A specific statute of limitation preempts a general statute of limitation where there is a conflict; consequently, this section applies to a workers’ compensation claimant, injured out of state because it specifically and unambiguously refers to filing deadlines for compensated extraterritorial claims, whereas KRS 342.185 is the general workers’ compensation statute of limitation. Boyd v. C & H Transp., 902 S.W.2d 823, 1995 Ky. LEXIS 68 ( Ky. 1995 ).

2. Application.

For this Commonwealth’s extraterritorial coverage law to apply to an injury, the injury must occur outside of Kentucky to a Kentucky resident who principally works in Kentucky at the time of the injury. Amax Coal Co. v. Smith, 748 S.W.2d 158, 1988 Ky. App. LEXIS 34 (Ky. Ct. App. 1988).

3. Place of Contract.

Where claimant was working under a contract of hire made in Kentucky and during the two year period he worked for the company he worked in three different states, Ohio, Kentucky and Indiana, even though at the time of his injury claimant was working in Ohio he had not established his domicile in Ohio and therefore he was entitled to extraterritorial coverage under the provisions of subsection (1)(b) of this section. United Pipeline Constr. Co. v. Kaelin, 602 S.W.2d 176, 1980 Ky. App. LEXIS 337 (Ky. Ct. App. 1980).

Although the Worker’s Compensation Board went to great lengths to chronicle the employer/employee contracting process, employee’s domiciliary, and his work in Kentucky, the entire analysis was essentially irrelevant, since it would only have come into play if subsection (1)(a) of this section as defined by subsection (4)(d)(1) (now (5)(d)(1)) of this section were not the appropriate standard of analysis i.e., only come into play if the administrative law judge’s findings were not supported by substantial evidence, or were incorrect as a matter of law, neither of which was the case. ECK Miller Transp. Corp. v. Wagers, 833 S.W.2d 854, 1992 Ky. App. LEXIS 159 (Ky. Ct. App. 1992).

Employee clearly bore the burden of proving by competent evidence all facts necessary to establish Kentucky jurisdiction for his claim. When the administrative law judge (ALJ) concluded that Kentucky jurisdiction was disallowed by statute, the Worker’s Compensation Board on review could only reverse the ALJ by determining his findings to be clearly erroneous, and holding that the evidence was so overwhelming, upon consideration of the record as a whole, that it compelled a finding in employee’s favor. Upon a review of the record, it was clear that the ALJ’s findings were consonant with the evidence presented to him. It was indisputably the case that employer assigned employee to work from employer’s place of business in Chattanooga, Tennessee, for the one and one-half years prior to his accident. Employer received substantially all his work orders from Chattanooga, and was in fact in Tennessee when the accident in question occurred. Under these circumstances, the ALJ’s finding that employer worked “from” Tennessee for statutory purposes was certainly supported by “reliable, probative, and material evidence.” ECK Miller Transp. Corp. v. Wagers, 833 S.W.2d 854, 1992 Ky. App. LEXIS 159 (Ky. Ct. App. 1992).

Where a contract of hire is made in one state followed by successive, temporary jobs in one or more other states, the primary question is whether the employment was intended to be continuous. If so, then the situs of the original contract of hire and the state in which the employment is principally localized at the time of injury are controlling for purposes of KRS 342.670 . Ky. Associated Gen. Contrs. Self-Insurance Fund v. Tri State Crane Rental, Inc., 240 S.W.3d 644, 2007 Ky. App. LEXIS 334 (Ky. Ct. App. 2007).

Employee’s contract of hire was made in Florida, and the extraterritorial coverage provisions of KRS 342.670(1)(b) did not apply because the employee received his work orders from the Florida office and had no interaction with the Kentucky office, and the offer of employment and the employee’s acceptance occurred in Florida. Peabody Painting & Waterproofing, Inc. v. Ky. Employers' Mut. Ins. Co., 329 S.W.3d 684, 2010 Ky. App. LEXIS 238 (Ky. Ct. App. 2010).

Substantial evidence supported the administrative law judge’s conclusion that the contract of hire of the employee who subsequently sustained an out-of-state injury while working for the employer was executed in Rhode Island, where the employer accepted the employee’s offer to work for the employer as a car hauler. As a result, the employee could not show that Kentucky had jurisdiction over the employee’s application for workers’ compensation benefits under KRS 342.670(1)(b), as the contract of hire had not been made in Kentucky. Traugott v. Va. Transp., 341 S.W.3d 115, 2011 Ky. LEXIS 94 ( Ky. 2011 ).

Although the employee indicated over the telephone from the employee’s home in Kentucky that the employee accepted the employer’s offer of trucking company employment, substantial evidence supported the administrative law judge’s conclusion that contract of employment was not formed until the employee completed various requirements in Missouri. As a result, Kentucky under KRS 342.670(1) did not have jurisdiction over the employee’s application for workers’ compensation benefits for an injury the employee sustained in New Jersey, as the evidence showed that the employment was not principally located in any state and that the contract of hire had not made in Kentucky. Graham v. TSL, Ltd., 350 S.W.3d 430, 2011 Ky. LEXIS 113 ( Ky. 2011 ).

Substantial evidence of record supported the administrative law judge’s finding that the contract of hire was entered into in Kentucky because the employee and the employer did not enter into a contract of hire until they discussed the employee’s full-time permanent employment during dinner in Kentucky. Ky. Employers' Mut. Ins. v. Burnett, 432 S.W.3d 733, 2014 Ky. App. LEXIS 82 (Ky. Ct. App. 2014).

4. Principally Localized.

Where an employee of a mobile car-crusher company was injured in Tennessee, but had worked sporadically in both Kentucky and Tennessee, was domiciled in Kentucky and had spent a substantial amount of time (20 percent) working in Kentucky, his employment was principally localized in Kentucky pursuant to subsection (4)(d)2 (now (5)(d)(2)) of this section, so that his out-of-state injury is compensable under subsection (1)(a) of this section. Davis v. Wilson, 619 S.W.2d 709, 1980 Ky. App. LEXIS 435 (Ky. Ct. App. 1980).

Where an employee of a mobile car-crusher company was injured in Tennessee, but had worked sporadically in both Kentucky and Tennessee, the employment was not principally located in either state, so as to bring him within subsection (4)(d)1 (now (5)(d)(1)) of this section. Davis v. Wilson, 619 S.W.2d 709, 1980 Ky. App. LEXIS 435 (Ky. Ct. App. 1980).

Where a claimant was hired under an Indiana contract, worked for an Indiana employer, and for his last working years, his work was totally and exclusively localized in Indiana, his claim for compensation should have been made in Indiana, not in Kentucky, even though the claimant may have contracted his occupational disease in this Commonwealth. Amax Coal Co. v. Smith, 748 S.W.2d 158, 1988 Ky. App. LEXIS 34 (Ky. Ct. App. 1988).

The decedent’s employment was not principally localized in Alabama where there was no substantial evidence that the employer maintained a place of business in Alabama. Haney v. Butler, 990 S.W.2d 611, 1999 Ky. LEXIS 14 ( Ky. 1999 ).

Evidence that a corporation performed part of a shipping contract at a particular port or that it used a port to repair equipment is not sufficient to demonstrate that the corporation has a place of business at the port; likewise, the fact that a worker spends the majority of his time repairing company equipment at various ports within a state is not sufficient to demonstrate that his employer has a place or places of business within the state. Haney v. Butler, 990 S.W.2d 611, 1999 Ky. LEXIS 14 ( Ky. 1999 ).

Because the employer maintained his business in Kentucky and the employee worked from that location, under KRS 342.670(5)(d), Kentucky had extraterritorial workers’ compensation jurisdiction over the employee’s claim. Dallas Nat'l Ins. Co. v. Board, 2012 Ky. App. LEXIS 64 (Ky. Ct. App. Apr. 13, 2012), aff'd, 2013 Ky. Unpub. LEXIS 36 (Ky. June 20, 2013).

Administrative law judge properly determined extraterritorial jurisdiction applied because the employer had no formal place of business, and the employee testified that 90 percent of his work was performed in Kentucky. Ky. Employers' Mut. Ins. v. Burnett, 432 S.W.3d 733, 2014 Ky. App. LEXIS 82 (Ky. Ct. App. 2014).

Employee’s place of employment was principally localized in Virginia because the employee made a deliberate choice to continue to work for the employer at its Virginia mine after the employer closed operations in Kentucky, and he worked exclusively in Virginia; thus, pursuant to subsection (5)(d)(1), the employer did not have a place of business in Kentucky and did not regularly work at or from that place of business, and subsection (1)(a) and (b) were inapplicable. Consol of Ky., Inc. v. Goodgame, 2014 Ky. App. LEXIS 86 (Ky. Ct. App. May 23, 2014), aff'd in part, 479 S.W.3d 78, 2015 Ky. LEXIS 1863 ( Ky. 2015 ).

Subsection (1)(c) was inapplicable because an employee failed to prove Virginia’s workers’ compensation law did not apply; the employee’s work was principally localized in Virginia. Consol of Ky., Inc. v. Goodgame, 2014 Ky. App. LEXIS 86 (Ky. Ct. App. May 23, 2014), aff'd in part, 479 S.W.3d 78, 2015 Ky. LEXIS 1863 ( Ky. 2015 ).

5. Payments from Another State.

An employer against whom a 100% disability award is adjudged is not entitled to a credit for sums the disabled employee receives pursuant to a prior unrelated Worker’s Compensation award from another state. Collins v. McInnes Mines, 747 S.W.2d 602, 1988 Ky. LEXIS 21 ( Ky. 1988 ).

6. Out-of-State Injury.

When Kentucky employee was injured while temporarily in West Virginia, allegedly by negligence of West Virginia corporation, not his employer, Kentucky compensation law was applicable, in absence of statutory written agreement to the contrary. Sloan v. Appalachian Electric Power Co., 27 F. Supp. 108, 1939 U.S. Dist. LEXIS 2823 (D. W. Va. 1939) (decided under prior law).

Where claimant’s employment with his Kentucky employer was one, continuous contract of employment made in Kentucky, albeit interrupted by a six-month lay off, rather than a new contract that began after his recall, and his employment was not principally localized in any state, as the employer did business in three states, pursuant to KRS 342.670(1), the claimant was entitled to benefits for an injury sustained while working for the employer in Ohio. Ky. Associated Gen. Contrs. Self-Insurance Fund v. Tri State Crane Rental, Inc., 240 S.W.3d 644, 2007 Ky. App. LEXIS 334 (Ky. Ct. App. 2007).

7. — Double Claim.

Where the claimant was hired in Kentucky but was injured in Indiana and signed an agreement for compensation which complied with the workers’ compensation law of Indiana, but no agreement of exemption was filed with the Kentucky compensation board, the claimant was not precluded from seeking recovery under the Kentucky compensation law if credit was given for compensation paid under the Indiana agreement. Industrial Track Builders v. Lemaster, 429 S.W.2d 403, 1968 Ky. LEXIS 750 ( Ky. 1968 ) (decided under prior law).

8. Subrogation.

Provisions of the Kentucky compensation law became part of contract of employment entered into in Kentucky so that compensation insurer’s right of subrogation was not only statutory but contractual. Sloan v. Appalachian Electric Power Co., 27 F. Supp. 108, 1939 U.S. Dist. LEXIS 2823 (D. W. Va. 1939) (decided under prior law).

Cited:

Estes v. Kentucky Utilities Co., 636 F.2d 1131, 1980 U.S. App. LEXIS 11586 (6th Cir. 1980); Bryant v. Jericol Mining, Inc., 758 S.W.2d 45, 1988 Ky. App. LEXIS 90 (Ky. Ct. App. 1988); Coal Dust Coal Co. v. Stiltner, 905 S.W.2d 859, 1995 Ky. LEXIS 100 ( Ky. 1995 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

342.680. Presumptions in the case of death or of physical or mental inability to testify.

In any claim for compensation, where the employee has been killed, or is physically or mentally unable to testify as confirmed by competent medical evidence and where there is unrebutted prima facie evidence that indicates that the injury was work related, it shall be presumed, in the absence of substantial evidence to the contrary, that the injury was work related, that sufficient notice of the injury has been given, and that the injury or death was not proximately caused by the employee’s intoxication or by his willful intention to injure or kill himself or another.

History. Enact. Acts 1972, ch. 78, § 8, effective January 1, 1973; 1996 (1st Ex. Sess.), ch. 1, § 79, effective December 12, 1996.

Legislative Research Commission Note.

(12/12/96). 1996 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 79 stated that it was amending this statute, but the proposed changes to the statute were eliminated by legislative action on this Act although the statute itself was not deleted from the bill.

NOTES TO DECISIONS

  1. Rebuttal of Presumption.
  2. Absence of Rebutting Evidence.
  3. Burden of Proof.
1. Rebuttal of Presumption.

To overcome the presumption that employee’s death was not proximately caused by his intoxication, employer and the uninsured employers’ fund must prove the intoxication of employee by substantial evidence, and prove that such intoxication was the primary cause of employee’s death. Wilson v. Wizor, 544 S.W.2d 231, 1976 Ky. LEXIS 21 ( Ky. 1976 ).

The mere submission that employee’s blood alcohol content was .10% by weight at the time of death is not sufficient to strip the deceased of statutory presumption that death was not proximately caused by his intoxication. Wilson v. Wizor, 544 S.W.2d 231, 1976 Ky. LEXIS 21 ( Ky. 1976 ).

Even assuming that an employer rebutted the presumption of causation of a claimant’s injury and reduced it to no more than a permissible inference, because other substantial evidence supported a finding of and that the claimant’s injury was work-related, via the testimony of the medical experts and the claimant herself, the finding of causation was reasonable. AK Steel Corp. v. Adkins, 253 S.W.3d 59, 2008 Ky. LEXIS 137 ( Ky. 2008 ).

Death benefits were properly awarded in a workers’ compensation matter since the evidence was sufficient to establish a causation connection between the employee’s death and his employment where the employee was lured into a car, forced to go inside of a store and disable an alarm, and then murdered on the premises; the employer’s theories about why the employee was murdered were based on innuendo and speculation, rather than substantial evidence. The perpetrator’s testimony regarding his jealous feelings toward the employee was without credibility where he lied to investigators and gave clear and inconsistent testimony, and the employer’s allegation that the employee violated policy by returning to the store without calling first was not determinative of whether the presumption under KRS 342.680 was rebutted. JJ's Smoke Shop, Inc. v. Walker, 2013 Ky. App. LEXIS 22 (Ky. Ct. App. Feb. 1, 2013), rev'd, 2014 Ky. Unpub. LEXIS 40 (Ky. June 19, 2014).

Administrative law judge hearing an estate's request for workers' compensation death benefits did not misapply the presumption in Ky. Rev. Stat. Ann. § 342.680 once the estate showed the decedent's work in some way caused the decedent's cardiac event because the employer produced evidence that the death was not work-related, meeting the employer's statutory burden. Thomas v. Eddie's Serv. Ctr., 2015 Ky. App. LEXIS 156 (Ky. Ct. App. Nov. 13, 2015), aff'd, 503 S.W.3d 881, 2016 Ky. LEXIS 568 ( Ky. 2016 ).

2. Absence of Rebutting Evidence.

Where the evidence was uncontradicted that the injury was work-related, and there was absolutely no evidence to rebut the statutory presumption of this section, the board’s finding to the contrary was clearly erroneous and would be reversed. Teague v. South Cent. Bell, 585 S.W.2d 425, 1979 Ky. App. LEXIS 440 (Ky. Ct. App. 1979).

Where the testimony of deceased employee’s wife, treating physician, and supervisor all showed that the deceased had turned his ankle either “at work” or alighting from his car in the company parking lot, and where there was absolutely no evidence to rebut the presumption created by this section, the board’s finding that the injury was not work-related was clearly erroneous and would be reversed. Teague v. South Cent. Bell, 585 S.W.2d 425, 1979 Ky. App. LEXIS 440 (Ky. Ct. App. 1979).

Report by the employer's witness, a doctor, was not substantial evidence rebutting the statutory presumption in this section, as his understanding that the activity before the decedent's death required only minimal non-strenuous exertion was not supported by the evidence, which showed that the decedent climbed up and down a steep embankment and under the truck several times and was winded, the decedent was under a large amount of work-related stress, and the report contained numerous internal inconsistencies. Eddie's Serv. Ctr. v. Thomas, 503 S.W.3d 881, 2016 Ky. LEXIS 568 ( Ky. 2016 ).

3. Burden of Proof.

Where newspaper carrier was killed when a newspaper vending machine fell on him in the back of his truck, the burden was on the newspaper to show by substantial evidence the death was not work-related. Evansville Printing Corp. v. Sugg, 817 S.W.2d 455, 1991 Ky. App. LEXIS 116 (Ky. Ct. App. 1991).

342.690. Exclusiveness of liability.

  1. If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. For purposes of this section, the term “employer” shall include a “contractor” covered by subsection (2) of KRS 342.610 , whether or not the subcontractor has in fact, secured the payment of compensation. The liability of an employer to another person who may be liable for or who has paid damages on account of injury or death of an employee of such employer arising out of and in the course of employment and caused by a breach of any duty or obligation owed by such employer to such other shall be limited to the amount of compensation and other benefits for which such employer is liable under this chapter on account of such injury or death, unless such other and the employer by written contract have agreed to share liability in a different manner. The exemption from liability given an employer by this section shall also extend to such employer’s carrier and to all employees, officers or directors of such employer or carrier, provided the exemption from liability given an employee, officer or director or an employer or carrier shall not apply in any case where the injury or death is proximately caused by the willful and unprovoked physical aggression of such employee, officer or director.
  2. If an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may claim compensation under this chapter and in addition may maintain an action at law or in admiralty for damages on account of such injury or death, provided that the amount of compensation shall be credited against the amount received in such action, and provided that, if the amount of compensation is larger than the amount of damages received, the amount of damages less the employee’s legal fees and expenses shall be credited against the amount of compensation. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, that the employee assumed the risks of his employment, or that the injury was due to the contributory negligence of the employee.
  3. An employer shall retain all common law defenses against any action by an employee who elects not to be covered, as provided under subsection (6) of KRS 342.650 .
    1. Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisee, neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purpose under this chapter. (4) (a) Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisee, neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purpose under this chapter.
    2. Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisor, neither a franchisor nor a franchisor’s employee shall be deemed to be an employee of the franchisee for any purpose under this chapter.
    3. For purposes of this subsection, “franchisee” and “franchisor” have the same meanings as in 16 C.F.R. sec. 436.1.

HISTORY: Enact. Acts 1972, ch. 78, § 9, effective January 1, 1973; 1980, ch. 188, § 275, effective July 15, 1980; 2017 ch. 24, § 4, effective June 29, 2017.

NOTES TO DECISIONS

Analysis

  1. Constitutionality.
  2. Construction.
  3. Purpose.
  4. Jurisdiction.
  5. Common Law.
  6. Limited Liability.

3. Liability on Tort Claim.

4. Action by Third Party.

9. Waiver of Defenses.

10. Parent and Subsidiary Corporations.

11. Dual Capacity Doctrine.

12. Fellow Employee.

1. Constitutionality.

Subsection (1) of this section limits the liability of the contractor to another who has paid benefits on account of injury or death of an employee to the amount of compensation for which the contractor is liable and this section is not unconstitutional. Fireman's Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 1986 Ky. LEXIS 239 ( Ky. 1986 ).

Employee’s consent to the Kentucky Workers’ Compensation Act negated any argument that the application of KRS 342.610 and 342.690 was unconstitutional under the jural rights doctrine. Rehm v. Navistar Int'l, 2005 Ky. App. LEXIS 48 (Ky. Ct. App. Feb. 25, 2005), aff'd in part and rev'd in part, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

2. Construction.

KRS 342.316(3)(b) is not in conflict with KRS 342.610(1), 342.640(1), and subsection (1) of this section. Mullins v. Manning Coal Corp., 938 S.W.2d 260, 1997 Ky. LEXIS 1 (Ky.), cert. denied, 521 U.S. 1119, 117 S. Ct. 2511, 138 L. Ed. 2d 1014, 1997 U.S. LEXIS 4077 (U.S. 1997).

The Workers’ Compensation Act does not preclude a statutory civil rights action claiming employment discrimination on the basis of disability. Hardaway Mgmt. Co. v. Southerland, 977 S.W.2d 910, 1998 Ky. LEXIS 137 ( Ky. 1998 ).

Absent “willful and unprovoked physical aggression” by an employee, officer, or director, there is no exception to the exclusive liability provision of the Workers' Compensation Act. Shamrock Coal Co. v. Maricle, 5 S.W.3d 130, 1999 Ky. LEXIS 144 ( Ky. 1999 ).

Entitlement to protection under KRS 342.610 and 342.690 is strictly construed. Rehm v. Navistar Int'l, 2005 Ky. App. LEXIS 48 (Ky. Ct. App. Feb. 25, 2005), aff'd in part and rev'd in part, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

Where workers at a uranium enrichment plant alleged that plant operators deliberately exposed the workers to radiation, provided inadequate safety measures, and kept the workers ignorant of the dangers, there was no evidence that the operators had the specific intent to injure the workers within the meaning of KRS 342.610(4) and thus, under KRS 342.690(1), the workers’ remedies were limited to those provided by the Kentucky Workers' Compensation Act. Rainer v. Union Carbide Corp., 402 F.3d 608, 2005 FED App. 0112P, 2005 U.S. App. LEXIS 3795 (6th Cir. Ky. 2005 ), amended, 2005 U.S. App. LEXIS 5079 (6th Cir. Mar. 25, 2005), cert. denied, 546 U.S. 978, 126 S. Ct. 562, 163 L. Ed. 2d 462, 2005 U.S. LEXIS 7885 (U.S. 2005).

Exception to the exclusivity of workers’ compensation did not apply, where there was no evidence in the record that defendants acted with any physical aggression. Meade v. Arnold, 643 F. Supp. 2d 913, 2009 U.S. Dist. LEXIS 65032 (E.D. Ky. 2009 ).

3. Purpose.

The Legislature did not seek to abolish indemnity actions in enacting this section, but rather sought to limit the amount of recovery over against the employer. Union Carbide Corp. v. Sweco, Inc., 610 S.W.2d 932, 1980 Ky. App. LEXIS 413 (Ky. Ct. App. 1980).

In enacting this section and repealing a former similar section, it is clear that the effect was to remove the unlimited exclusive remedy language of the former section (“released from all other liability”) and substitute a limited version in its place (“limited to the amount of compensation and other benefits for which such employer is liable under this chapter.”) Burrell v. Electric Plant Bd., 676 S.W.2d 231, 1984 Ky. LEXIS 207 ( Ky. 1984 ), overruled, Dix & Assoc. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 1990 Ky. LEXIS 107 ( Ky. 1990 ).

4. Jurisdiction.

Where former employees of a coal company brought an action against the coal company after the enactment of an amendment to KRS 342.732 which rendered them ineligible for benefits for coal workers’ pneumoconiosis, the coal company was, on the face of the complaint, entitled to the protection of the exclusive liability provision and, therefore, the Circuit Court in which the action was commenced had no subject matter jurisdiction and the Workers’ Compensation Board had exclusive jurisdiction. Shamrock Coal Co. v. Maricle, 5 S.W.3d 130, 1999 Ky. LEXIS 144 ( Ky. 1999 ).

Trial court had subject matter jurisdiction to approve a petition that allowed transfer of settlement agreement funds owed to the employee to the third-party. While KRS 342.325 and KRS 342.690(1) conferred exclusive jurisdiction of claims filed pursuant to its provisions with the Board, the third-party’s petition did not request that any matter relating to a workers’ compensation claim be litigated, but, instead, asked that its petition pursuant to the Structured Settlement Protection Act be approved. Ky. Employers' Mut. Ins. v. Novation Capital, LLC, 361 S.W.3d 320, 2011 Ky. App. LEXIS 260 (Ky. Ct. App. 2011), overruled in part, Am. Gen. Life Ins. Co. v. DRB Capital, LLC, 562 S.W.3d 916, 2018 Ky. LEXIS 535 ( Ky. 2018 ).

5. Common Law.

The common-law right of indemnity may not be emasculated by any language or act of the legislature, no matter how worded. Union Carbide Corp. v. Sweco, Inc., 610 S.W.2d 932, 1980 Ky. App. LEXIS 413 (Ky. Ct. App. 1980).

6. Limited Liability.

KRS 342.700 and this section must be read as limiting the liability of the employer to the extent of his liability under the Workers’ Compensation Act but not as relieving a negligent employer of liability altogether; by giving effect to both the employer’s subrogation section, KRS 342.700 , and the limited liability language in this section, the purposes of the compensation act are effected without foreclosing an unconscionable windfall for the employer. Burrell v. Electric Plant Bd., 676 S.W.2d 231, 1984 Ky. LEXIS 207 ( Ky. 1984 ), overruled, Dix & Assoc. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 1990 Ky. LEXIS 107 ( Ky. 1990 ).

3. Liability on Tort Claim.

Where decedent employee was killed when the outer band of a coil of steel manufactured by his employer came loose causing the steel to uncoil, his estate was precluded by the exclusivity of remedy provision from recovering from the employer on a products liability claim. Borman v. Interlake, Inc., 623 S.W.2d 912, 1981 Ky. App. LEXIS 299 (Ky. Ct. App. 1981).

Where Federal District Court allowed defendant employer to amend answer, 41 months after original answer was filed, to assert affirmative defense of exclusivity of workers’ compensation remedy under this section, it was proper to allow this amendment under F.R.C.P. 15(a) and to grant summary judgment for defendant in common-law tort action, since the amendment furthered the policy of state law under this section and plaintiff conceded that defendant was an employer entitled to the protection of the act. Estes v. Kentucky Utilities Co., 636 F.2d 1131, 1980 U.S. App. LEXIS 11586 (6th Cir. Ky. 1980 ).

Although the equitable right to indemnity may have existed in 1891, since an employer’s indemnity of a third-party tort-feasor would not have existed, Const., §§ 14, 54 and 241 are not a bar to any attempt to limit indemnification. Capps v. Herman Schwabe, Inc., 628 F. Supp. 1353, 1986 U.S. Dist. LEXIS 29917 (W.D. Ky. 1986 ).

An employer’s liability to indemnify third-party tort-feasor is limited by subsection (1) of this section to the amount of workers’ compensation benefits payable by the employer to the injured employee. Capps v. Herman Schwabe, Inc., 628 F. Supp. 1353, 1986 U.S. Dist. LEXIS 29917 (W.D. Ky. 1986 ).

A contractor has no liability in tort to an injured employee of a subcontractor. Because the contractor is liable under subsection (2) of KRS 342.610 for the worker’s compensation benefits to the employee if the subcontractor, his employer, has not secured those benefits, that potential liability for worker’s compensation benefits relieves the contractor from tort liability under this section. Fireman's Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 1986 Ky. LEXIS 239 ( Ky. 1986 ).

Where the buyer contracted with the seller to rebrick the tank furnace, and the firebricks had to be replaced periodically as an ordinary part of plant maintenance, the buyer was contracting to “have work performed of a kind which is a regular or recurrent part” of the buyer’s business; thus, the buyer was thus a contractor under subsection (2) of KRS 342.610 and was immune from tort liability to injured brick mason. Granus v. North American Philips Lighting Corp., 821 F.2d 1253, 1987 U.S. App. LEXIS 8186 (6th Cir. Ky. 1987 ).

Where subcontractor employee was injured while collecting solid waste from the hospital, because disposal of solid waste was not a regular or recurrent part of the hospital’s business, the hospital had no potential liability for the payment of workers’ compensation benefits to the employee and, therefore, was not immune from a common law action for damages for personal injuries sustained by the subcontractor employee. Waggoner v. Woodland Dialysis Facility, 1999 Ky. App. LEXIS 137 (Ky. Ct. App. Oct. 29, 1999).

Employer who had secured workers compensation coverage for its employees was entitled to summary judgment in its favor; Kentucky Workers Compensation Act preempted common law tort claims by an employee against the employer. Casey v. Vanderlande Indus., 2002 U.S. Dist. LEXIS 11956 (W.D. Ky. June 28, 2002).

Plain language of KRS 342.690(1) and the Kentucky courts’ long history of interpreting the Kentucky Workers’ Compensation Act to prohibit tort actions grounded in negligence between an employer and employee led to the conclusion that the exclusivity provision of Kentucky’s Workers’ Compensation Act barred negligent supervision claims between an employer and employee. Grego v. Meijer, Inc., 239 F. Supp. 2d 676, 2002 U.S. Dist. LEXIS 25037 (W.D. Ky. 2002 ).

Where the injured party was injured while performing work for the employer, who had been hired by the retailer and subsidiary to perform work regularly performed as a part of the retailer’s business, the trial court properly granted summary judgment pursuant to CR 56 in favor of the retailer and subsidiary in the injured party’s negligence action; the retailer was a contractor and the employer was a subcontractor under KRS 342.610(2), and as a result, the retailer and subsidiary were liable for workers’ compensation under KRS 342.700(2) and 342.690(1). Wright v. Dolgencorp, Inc., 161 S.W.3d 341, 2004 Ky. App. LEXIS 280 (Ky. Ct. App. 2004).

A liability policy’s exclusion of coverage for injuries within the purview of the Workers’ Compensation Act applied to relieve an insurance company of liability for tort claims brought under KRS 342.690(2) where the employer failed to provide workers’ compensation coverage. Brown v. Ind. Ins. Co., 184 S.W.3d 528, 2005 Ky. LEXIS 392 ( Ky. 2005 ).

State employees of the Kentucky Department of Transportation were not entitled to “up the ladder” immunity from liability in an action filed by the deceased construction worker, pursuant to KRS 342.690 , because the Department could not be considered as a contractor under KRS 342.610 since government agencies were not included in the definition of “persons” under KRS 342.0011 . Hensley v. Davis, 2006 Ky. App. LEXIS 304 (Ky. Ct. App.), sub. op., 2006 Ky. App. Unpub. LEXIS 612 (Ky. Ct. App. Oct. 6, 2006), aff'd, 256 S.W.3d 16, 2008 Ky. LEXIS 149 ( Ky. 2008 ).

Trial court’s finding that an auction business had up-the ladder immunity in a claim brought by a worker allegedly injured by the negligence of a temporary employee working for the auction business was error because the auction business was a contractor and the temporary service was a subcontractor, and as a contractor, the auction business was liable to the temporary service’s employees for workers’ compensation, but was immune from civil suit by those employees. Johnston v. Labor Ready, Inc., 2007 Ky. App. Unpub. LEXIS 250 (Ky. Ct. App. Apr. 6, 2007), aff'd, 289 S.W.3d 200, 2009 Ky. LEXIS 153 ( Ky. 2009 ).

Supervisor was not fraudulently joined in employee’s action against employer where the employee alleged that he was severely humiliated by the supervisor’s harassment regarding his disability. This potentially stated an intentional infliction of emotion distress claim, and the exclusivity provision of the Workers’ Compensation Act, KRS 342.690(2), did not bar the claim because there was nothing in the complaint indicating that the employer had complied with the insurance requirements of the Act. Long v. Hoffman Enclosures, Inc., 2008 U.S. Dist. LEXIS 49910 (E.D. Ky. June 23, 2008).

In an injured worker’s personal injury suit against a subcontractor, the contractor-premises owner was entitled to summary judgment as no formal written contract between the injured worker’s direct employer and the contractor was essential to establish up-the-ladder immunity under KRS 342.690(1) against the worker’s tort claims. Beaver v. Oakley, 279 S.W.3d 527, 2009 Ky. LEXIS 74 ( Ky. 2009 ).

As KRS 342.615(5) deemed a temporary help service to be a temporary employee’s employer, KRS 342.690(1) would not deem an injured permanent employee and the temporary employee to be co-employees, and therefore immunize the subcontractor and temporary employee from the permanent employee’s tort claim. Labor Ready, Inc. v. Johnston, 289 S.W.3d 200, 2009 Ky. LEXIS 153 ( Ky. 2009 ).

Because a decedent had voluntarily accepted workers’ compensation coverage during his employment with a tobacco company, along with its no-fault benefits, he could not escape the exclusive remedy provision, KRS 342.690(1), and judgment was properly awarded to the tobacco company in a negligence action brought by the executrix of his estate. McGuire v. Lorillard Tobacco Co., 2014 Ky. App. LEXIS 25 (Ky. Ct. App. Feb. 14, 2014), review denied, ordered not published, 2015 Ky. LEXIS 29 (Ky. Feb. 11, 2015).

Employer was entitled to summary judgment as to a personal representative's tort claim arising from an employee's death because the evidence showed the employee died when he was thrown or fell from a tractor while engaged in his regular job of mowing grass and not when allegedly rendering aid to other employees. Stevenson v. Mohon, 2014 Ky. App. LEXIS 182 (Ky. Ct. App. Dec. 5, 2014), cert. denied, 137 S. Ct. 61, 196 L. Ed. 2d 33, 2016 U.S. LEXIS 6012 (U.S. 2016).

Individual employer was entitled to summary judgment as to a personal representative's tort claim arising from an employee's death because (1) the evidence showed this individual was the manager of the employer, which was a limited liability company, so (2) the employer's statutory exemption from liability extended to this individual. Stevenson v. Mohon, 2014 Ky. App. LEXIS 182 (Ky. Ct. App. Dec. 5, 2014), cert. denied, 137 S. Ct. 61, 196 L. Ed. 2d 33, 2016 U.S. LEXIS 6012 (U.S. 2016).

Co-employees were entitled to summary judgment as to a personal representative's tort claim arising from an employee's death because evidence showing the co-employees were employed by the deceased employee's employer was not rebutted. Stevenson v. Mohon, 2014 Ky. App. LEXIS 182 (Ky. Ct. App. Dec. 5, 2014), cert. denied, 137 S. Ct. 61, 196 L. Ed. 2d 33, 2016 U.S. LEXIS 6012 (U.S. 2016).

4. Action by Third Party.

This section plainly expresses a potential liability for an employer if obligated to a third party “who has paid damages on account of injury or death of an employee,” a liability “limited to the amount of compensation and other benefits for which such employer is liable” under the Workers’ Compensation Act. This liability is for “breach of any duty or obligation owed by such employer to such other (third party).” Burrell v. Electric Plant Bd., 676 S.W.2d 231, 1984 Ky. LEXIS 207 ( Ky. 1984 ), overruled, Dix & Assoc. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 1990 Ky. LEXIS 107 ( Ky. 1990 ).

Third party, against whom suit was brought by employee who alleged that his injuries were due to third party’s negligence, had a right to maintain an action against employer who was also allegedly negligent in causing employee’s injuries. Burrell v. Electric Plant Bd., 676 S.W.2d 231, 1984 Ky. LEXIS 207 ( Ky. 1984 ), overruled, Dix & Assoc. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 1990 Ky. LEXIS 107 ( Ky. 1990 ).

Where employee sued third party for injuries due to negligence of third party, third party could claim contribution against employer who was concurrently negligent in causing employee’s injuries, which contribution would be limited to the amount of compensation and other benefits for which the employer was liable under the Workers' Compensation Act. Burrell v. Electric Plant Bd., 676 S.W.2d 231, 1984 Ky. LEXIS 207 ( Ky. 1984 ), overruled, Dix & Assoc. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 1990 Ky. LEXIS 107 ( Ky. 1990 ).

An employer’s liability to a third party who has paid damages due to the death or injury of an employee is limited to the amount of compensation and other benefits for which the employer is liable under the Workers' Compensation Act. Commonwealth Transp. Cabinet Dep't of Highways v. Arrow Truck Lines & Transport Indem. Co., 713 S.W.2d 1, 1986 Ky. App. LEXIS 1173 (Ky. Ct. App. 1986).

Fact that a third-party defendant employer had paid workers’ compensation benefits to the plaintiff employee did not preclude the defendant lessor and the third-party defendant manufacturer from naming the employer as a third-party defendant for purposes of apportionment under KRS 411.182 or for common law indemnity, and the employer’s motion to dismiss the third-party complaint against it was denied. Smith v. Leveelift, Inc., 2005 U.S. Dist. LEXIS 19997 (E.D. Ky. Sept. 13, 2005).

9. Waiver of Defenses.

Exclusivity of liability provision of Workers’ Compensation Act, is an affirmative defense which must be pleaded and proven, the failure of which amounts to a waiver. Gordon v. NKC Hosps., 887 S.W.2d 360, 1994 Ky. LEXIS 132 ( Ky. 1994 ).

Even though an employer did not assert the KRS 342.690(1) exclusivity defense either in its answer or its Fed. R. Civ. P. 12(b)(6) motion to dismiss, it did not waive the defense because the employer did not attempt to raise the defense on the eve of trial and the employee had ample opportunity to consider and fully respond to the defense in her summary judgment opposition; while the employer should have been more diligent in raising the defense, the employee had not been prejudiced by the employer’s failure to raise the exclusivity defense earlier in the proceedings. Grego v. Meijer, Inc., 239 F. Supp. 2d 676, 2002 U.S. Dist. LEXIS 25037 (W.D. Ky. 2002 ).

10. Parent and Subsidiary Corporations.

The “functional relationship” between a parent corporation and a subsidiary is not a contractual relationship since the exceptions of the parties are not based on mutual promises, consideration or consent, for one party owns and has custody of the other party; consequently, the parent corporation of a mining company should not be characterized as a “contractor” for the mining services of its wholly owned subsidiary for purposes of the tort immunity provisions of the Workers' Compensation Act. Boggs v. Blue Diamond Coal Co., 590 F.2d 655, 1979 U.S. App. LEXIS 17392 (6th Cir. Ky.), cert. denied, 444 U.S. 836, 100 S. Ct. 71, 62 L. Ed. 2d 47, 1979 U.S. LEXIS 2678 (U.S. 1979).

Under Kentucky’s Workers’ Compensation Act a parent corporation is not immune from tort liability to employees of its subsidiary for its own independent acts of negligence; the parent should be liable under customary principles of the common law for harm resulting from its own negligent or reckless conduct. Boggs v. Blue Diamond Coal Co., 590 F.2d 655, 1979 U.S. App. LEXIS 17392 (6th Cir. Ky.), cert. denied, 444 U.S. 836, 100 S. Ct. 71, 62 L. Ed. 2d 47, 1979 U.S. LEXIS 2678 (U.S. 1979).

Guarantor was immune from being sued in a negligence case by the estates of deceased coal miners because it applied for and was granted status as a self-insurer; the guarantor was a carrier because it was a self-insurer authorized to insure the employees of its subsidiaries, and it met the regulatory and statutory requirements to gain approval for being a self-insurer. Even if the guarantor did not strictly meet the definition of a carrier or self-insurer, public policy still dictated that it be granted immunity. Falk v. Alliance Coal, LLC, 2013 Ky. App. LEXIS 127 (Ky. Ct. App. Aug. 16, 2013), aff'd, 461 S.W.3d 760, 2015 Ky. LEXIS 1630 ( Ky. 2015 ).

Parent company that completely “self-insures” the liability of its subsidiary, as provided in the workers' compensation regulations, is a carrier and immune from tort liability, just as its subsidiary is; to the extent that Boggs v. Blue Diamond Coal Co., 590 F.2d 655 (6th Cir. 1979), holds otherwise, it is incorrect. Therefore, a parent company was immune from tort liability for the deaths of several miners. Falk v. Alliance Coal, LLC, 461 S.W.3d 760, 2015 Ky. LEXIS 1630 ( Ky. 2015 ).

Employer's parent company was immune from tort liability under a Kentucky statute that made workers' compensation the worker's exclusive remedy, and as such, the district court properly granted summary judgment in favor of the parent company on the worker's suit for negligence and gross negligence. Littlepage v. Century Aluminum Co., 712 Fed. Appx. 550, 2017 FED App. 0617N, 2017 U.S. App. LEXIS 22531 (6th Cir. Ky. 2017 ).

11. Dual Capacity Doctrine.

Adoption of the “dual capacity doctrine,” whereby an employer is liable in tort to his employee in addition to being liable for the employee’s workers’ compensation benefit, is prohibited by the language of this section and KRS 342.700 , since such language evinces an intent to maintain the exclusivity of remedy principle intact. Borman v. Interlake, Inc., 623 S.W.2d 912, 1981 Ky. App. LEXIS 299 (Ky. Ct. App. 1981).

The statute prohibits the application of the dual capacity doctrine. Sharp v. Ford Motor Co., 66 F. Supp. 2d 867, 1998 U.S. Dist. LEXIS 22658 (W.D. Ky. 1998 ).

A medical negligence action against a hospital and a physical therapist, which arose from an injury sustained by the plaintiff during physical therapy following an injury sustained while working for the hospital, was not barred by the statute since the medical negligence claimed by the plaintiff did not attempt to hold the hospital liable in a dual capacity, but rather for a separate and distinct incident which occurred to her. Wymer v. JH Props., Inc., 50 S.W.3d 195, 2001 Ky. LEXIS 94 ( Ky. 2001 ).

12. Fellow Employee.

The fellow employee immunity provisions of this section are not applicable to a fellow employee whose actions are so far removed from those which would ordinarily be anticipated by the employer that it can be said that the employee causing the injury has removed himself from the course of his employment or that the injury did not arise out of the employment. Kearns v. Brown, 627 S.W.2d 589, 1982 Ky. App. LEXIS 199 (Ky. Ct. App. 1982).

The exemption from liability granted to an employer by subsection (1) of this section is also extended to all employees of the employer. Fireman's Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 1986 Ky. LEXIS 239 ( Ky. 1986 ).

Where employee claimed that he sustained injury as a result of a supervisor’s intentional acts, the exclusivity provisions of this section were not applicable to the supervisor and the trial court did not err in allowing employee’s civil action against supervisor to proceed. Brewer v. Hillard, 15 S.W.3d 1, 1999 Ky. App. LEXIS 93 (Ky. Ct. App. 1999).

Plaintiff’s claims against a supervisor were barred because the Workers’ Compensation Act barred liability on the part of employees to the same extent as it barred liability on the part of the employer. Meade v. Arnold, 643 F. Supp. 2d 913, 2009 U.S. Dist. LEXIS 65032 (E.D. Ky. 2009 ).

Employee who was injured when she reacted to the presence of a snake in her office did not present sufficient evidence of the co-employee’s “willful and unprovoked physical aggression” to overcome the exclusive remedy provisions of the Workers’ Compensation Act because the co-employee took the snake from a parent who had brought it to school for her daughter’s science class, which fell within the course of employment; did not know that the employee had a fear of snakes; and did not threaten to touch the employee with the snake. Jones v. Dougherty, 412 S.W.3d 188, 2012 Ky. App. LEXIS 283 (Ky. Ct. App. 2012).

Statute prohibits employees from suing their fellow employees for work-related injuries, and here immunity could not be defeated because the employee failed to present evidence that the individual he sued was acting as anything other than a fellow employee, and there was no basis for the employee’s claim that the individual was acting as an agent of the department on the day in question. Hughes v. Haas, 413 S.W.3d 315, 2013 Ky. App. LEXIS 179 (Ky. Ct. App. 2013).

Driver of a school bus was not entitled to fellow-employee immunity when a school board employee who was a passenger on the bus was injured in a crash of the bus because the driver's voluntarily intoxication while operating the bus, through the use of prescription medications, was an act so far removed from that which would be ordinarily be anticipated by the school board which employed the driver that the act of the driver was outside the scope and course of the driver's employment. Roach v. Wilson, 551 S.W.3d 450, 2017 Ky. App. LEXIS 576 (Ky. Ct. App. 2017).

13. Contractor.

Negligence and breach of contract claims brought against electric company by plaintiff, injured while performing emissions testing for his employer who was under contract to perform such services for electric company, were barred by the exclusive remedy provisions of the Kentucky Workers’ Compensation Act, this section. Emissions testing, required by the EPA, was a “regular and recurrent” part of electric company’s business and made company a contractor of plaintiff’s employer and therefore relieved of tort liability. Daniels v. Louisville Gas & Elec. Co., 933 S.W.2d 821, 1996 Ky. App. LEXIS 104 (Ky. Ct. App. 1996).

Because mineral company contracted to have work performed by a contract labor company employee and the work performed was a regular and recurring part of mineral company’s business, under the clear statutory definition, mineral company was a “contractor” within the meaning of the Kentucky Workers’ Compensation Act and the contract labor company was a “subcontractor” and therefore, injured employee was barred from maintaining an action in tort against mineral company. M.J. Daly Co. v. Varney, 695 S.W.2d 400, 1985 Ky. LEXIS 226 ( Ky. 1985 ) was overruled by implication in Fireman’s Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 1986 Ky. LEXIS 239 ( Ky. 1986 ). United States Fid. & Guar. Co. v. Technical Minerals, 934 S.W.2d 266, 1996 Ky. LEXIS 117 ( Ky. 1996 ).

The defendant, which contracted with a third party, which subcontracted with the claimant’s employer, was a contractor for purposes of the statute and, therefore, was entitled to immunity from claims for injuries sustained by the claimant while operating a vehicle on its premises as the defendant’s regular business of the assembly of vehicles included the distribution of the vehicles thus assembled, the defendant provided for transportation of its products via the railway adjacent to the assembly plant, and the claimant was injured while working as a rail loader. Sharp v. Ford Motor Co., 66 F. Supp. 2d 867, 1998 U.S. Dist. LEXIS 22658 (W.D. Ky. 1998 ).

In holding that defendant vehicle producer did not have tort immunity, pursuant to KRS 342.690 , from a suit brought by plaintiff employee, whose employer was a component parts manufacturer for the producer, a federal district court predicts that the Kentucky Supreme Court will adhere to the majority view that a mere purchaser of goods is not a statutory contractor, as defined by KRS 342.610(2), for the purposes of the Kentucky Workers’ Compensation Act, absent special circumstances. Davis v. Ford Motor Co., 244 F. Supp. 2d 784, 2003 U.S. Dist. LEXIS 1584 (W.D. Ky. 2003 ).

As the employee’s employer, who was a subcontractor, properly procured workers’ compensation insurance for its employee, a contractor was immune from civil liability to the employee for the injuries the employee sustained while unloading canisters at contractor’s warehouse pursuant to KRS 342.610(2), so the contractor’s motion for summary judgment based on KRS 342.690(1) was granted. Waterbury v. Anheuser-Busch, Inc., 2003 U.S. Dist. LEXIS 2639 (W.D. Ky. Feb. 24, 2003).

Construction company was a contractor to the employer on a highway project, and thus the exclusivity statute, KRS 342.690 , precluded the worker’s common law negligence suit against the construction company for work related injuries; the worker failed to present any affirmative evidence showing that a genuine issue of material fact existed regarding whether the construction company was a contractor, and summary judgment in favor of the construction company was affirmed. Ramler v. Spartan Constr., Inc., 2003 Ky. App. Unpub. LEXIS 880 (Ky. Ct. App. Sept. 5, 2003).

In a case involving premises liability and negligence, a trial court did not err by allowing several parties to amend their pleadings to raise the defense of “up-the-ladder” immunity because there was no prejudice; there was ample notice of the defense and time to respond. Rehm v. Navistar Int'l, 2005 Ky. App. LEXIS 48 (Ky. Ct. App. Feb. 25, 2005), aff'd in part and rev'd in part, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

In a case arising out of premises liability and negligence, a court decided the issue of “regular and recurrent” under KRS 342.610(2) as an issue of law because there was no dispute about the type of business engaged in and/or the type of work the employee performed for a company. Rehm v. Navistar Int'l, 2005 Ky. App. LEXIS 48 (Ky. Ct. App. Feb. 25, 2005), aff'd in part and rev'd in part, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

Summary judgment was properly granted to 16 contractors in a premises liability and negligence case based on a contractor’s employee being exposed to asbestos because “up-the-ladder” immunity applied under KRS 342.610 and 342.690 ; the work performed on removing and installing machinery was a regular or recurrent part of the businesses. Rehm v. Navistar Int'l, 2005 Ky. App. LEXIS 48 (Ky. Ct. App. Feb. 25, 2005), aff'd in part and rev'd in part, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

Where the truck driver had already received workers’ compensation benefits from his employer, the district court’s grant of summary judgment in favor of an auto maker was affirmed. The auto maker was immune from liability under KRS 342.690 because it was a contractor as defined by KRS 342.610 and because its subcontractor, the driver’s employer, secured workers’ compensation benefits for the driver. Giles v. Ford Motor Co., 126 Fed. Appx. 293, 2005 U.S. App. LEXIS 5638 (6th Cir. Ky. 2005 ).

Where a worker in a kiosk located in a department store sued the store for injuries sustained when a ceiling tile fell on her, and where the worker received workers’ compensation benefits for those injuries, the store was not immune from tort liability under the exclusive remedy provisions of the workers’ compensation act, KRS 342.690(1) because the store’s relationship with the kiosk was that of landlord tenant, rather than contractor/subcontractor where: (1) the licensing agreement between the store and the kiosk operator did not set up a single-integrated business or enterprise, but created a clear distinction between the store and the kiosk operator, (2) the kiosk operator leased the kiosk from the store for a fixed monthly rental and did not share its revenues, and (3) it operated the kiosk with its own inventory and employees. Smith v. Wal-Mart Stores E., L.P., 2005 U.S. Dist. LEXIS 20232 (W.D. Ky. Sept. 14, 2005).

Under KRS 342.610 and 342.690 , an “up-the-ladder” contractor was properly granted summary judgment in a negligence suit filed by its subcontractor’s injured worker, even though it did not prove it had workers’ compensation insurance covering the worker, because it proved the subcontractor had secured such coverage. Pennington v. Jenkins-Essex Constr., Inc., 238 S.W.3d 660, 2006 Ky. App. LEXIS 327 (Ky. Ct. App. 2006).

If a party is a “contractor” as defined by KRS 342.610 , it has no liability in tort to an injured employee of a subcontractor if it proves that the subcontractor had secured workers’ compensation coverage for the employee. Pennington v. Jenkins-Essex Constr., Inc., 238 S.W.3d 660, 2006 Ky. App. LEXIS 327 (Ky. Ct. App. 2006).

Because KRS 342.610(2) considers only persons to be contractors and does not hold a governmental entity liable as the “up-the-ladder” employer, KRS 342.690(1) does not entitle a governmental entity or its employees to an exclusive remedy defense on that basis. Davis v. Hensley, 256 S.W.3d 16, 2008 Ky. LEXIS 149 ( Ky. 2008 ).

Because a company which had a delivery agreement with an injured man’s employer was a “contractor” under KRS 342.610(2), it was entitled to “exclusive remedy” immunity under KRS 342.690 in the injured employee’s negligence action against it after recovering workers’ compensation benefits from the employer’s carrier. Thornton v. Carmeuse Lime Sales Corp., 346 S.W.3d 297, 2010 Ky. App. LEXIS 150 (Ky. Ct. App. 2010).

United States was entitled to up-the-ladder immunity under Kentucky’s Workers’ Compensation law in a Federal Tort Claims Act (FTCA) action arising out of plaintiff’s injuries while mowing grass at an army base; plaintiff was entitled only to workers’ compensation benefits received from his direct employer. Because the plaintiff’s work, as maintenance activities, was a regular and recurrent part of the business of the base, the United States was considered a contractor for purposes of applying up-the-ladder immunity. Himes v. United States, 645 F.3d 771, 2011 FED App. 0187P, 2011 U.S. App. LEXIS 14293 (6th Cir. Ky. 2011 ).

In light of Kentucky case law stating that maintenance work was considered as a matter of law to be a regular and recurrent part of the employer’s business, the employee’s argument that mowing was not part of the Army base’s business failed; therefore, the district court correctly concluded that the employee’s work pursuant to the contract between his employer and the base constituted regular and recurrent work, and the United States was entitled to immunity as a contractor under KRS 342.690(1). Himes v. United States, 645 F.3d 771, 2011 FED App. 0187P, 2011 U.S. App. LEXIS 14293 (6th Cir. Ky. 2011 ).

Restoring electrical power was a regular and recurrent part of a rural electric cooperative’s business under KRS 342.610(2)(b). Thus, the cooperative was a contractor under KRS 342.690(1) and was entitled to workers’ compensation immunity with regard to the accidental death of a subcontractor’s employee while restoring power in an ice storm; a federal emergency declaration did not alter the regular and recurrent nature of the work. Reichwein v. Jackson Purchase Energy Corp., 397 S.W.3d 413, 2012 Ky. App. LEXIS 185 (Ky. Ct. App. 2012).

Contractor and its parent company met each requirement for immunity from suit under Kentucky's Workers' Compensation Act based on the exclusivity of the remedy where (1) they hired plaintiff's employer to transport and deliver paper rolls to the contractor's factory; (2) unloading materials at the factory was a customary, usual, or normal part of the contractor's business; and (3) transportation and delivery or raw paper materials amounted to work that the contractor or similar business would normally perform or expect to perform with its own employees. Black v. Dixie Consumer Prods. LLC, 835 F.3d 579, 2016 FED App. 0213P, 2016 U.S. App. LEXIS 15924 (6th Cir. Ky. 2016 ), cert. denied, 137 S. Ct. 2294, 198 L. Ed. 2d 725, 2017 U.S. LEXIS 4142 (U.S. 2017).

Trial court erred as a matter of law when it denied the coal seam owner’s motion for summary judgment in a personal injury action filed by an employee of the contractor, because it was entitled to the exclusive remedy of this section, as it contracted with the contractor to mine the coal on its property and therefore was entitled to up-the-ladder immunity for the injuries the employee sustained while he was working in the course and scope of his employment for the contractor. Dixie Fuel Co., LLC v. Wynn, 2020 Ky. App. LEXIS 10 (Ky. Ct. App. Jan. 31, 2020).

14. Premises Owners.

Premises owners are “contractors” as defined in KRS 342.610(2)(b), and are deemed to be the statutory, or “up-the-ladder,” employers of individuals who are injured while working on their premises and are liable for workers’ compensation benefits unless the individuals’ immediate employers of the workers have provided workers’ compensation coverage; they also have exclusive remedy immunity from tort claims whether or not the immediate employers provided coverage. GE v. Cain, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

15. Spouses.

The decision by a spouse to be covered by the Workers’ Compensation Act must be binding upon his or her marital partner if his or her right to privacy is to be protected. Brooks v. Burkeen, 549 S.W.2d 91, 1977 Ky. LEXIS 407 ( Ky. 1977 ), overruled, Giuliani v. Guiler, 951 S.W.2d 318, 1997 Ky. LEXIS 74 ( Ky. 1997 ), overruled in part, Martin v. Ohio County Hosp. Corp., 295 S.W.3d 104, 2009 Ky. LEXIS 234 ( Ky. 2009 ).

16. Children.

A child’s claim for loss of parental consortium falls within the purview of the Workers’ Compensation Act and, as a result, is barred by its exclusive remedy provisions. Hardin v. Action Graphics, Inc., 57 S.W.3d 844, 2001 Ky. App. LEXIS 7 (Ky. Ct. App. 2001), cert. denied, 535 U.S. 1054, 122 S. Ct. 1910, 152 L. Ed. 2d 820, 2002 U.S. LEXIS 3240 (U.S. 2002).

17. Civil Rights Act.

The Supreme Court of Kentucky had to presume that the General Assembly knew of the Workers’ Compensation Law preemption doctrine when it created a private cause of action for “actual damages” caused by discrimination in the Kentucky Civil Rights Act, and that it intended to create an independent cause of action notwithstanding that the two statutes might provide alternative sources of statutory relief in those cases where the mental emotional injury inflicted caused work-related occupational disability. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

The Kentucky Civil Rights Act is a controlling specific statute as contrasted with the general law on the subject in the Workers' Compensation Law. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

Claims for damages against employer brought by employee pursuant to the Kentucky Civil Rights Act were not precluded by agreement entered into between employer and employee since the agreement was entered to settle compensation claims brought before the Compensation Board, did not release employer from liability under the Civil Rights Act, and only compensated employee for physical injuries. Gardinella v. General Elec. Co., 833 F. Supp. 617, 1993 U.S. Dist. LEXIS 14553 (W.D. Ky. 1993 ).

This section does not preclude claims for damages brought pursuant to the Kentucky Civil Rights Act, KRS 344.010 et seq., which provides a specific and independent cause of action to remedy employment discrimination; however, the rules regarding election of remedies may preclude recovery under the Civil Rights Act for an injury compensated under the Workers' Compensation Act. Gardinella v. General Elec. Co., 833 F. Supp. 617, 1993 U.S. Dist. LEXIS 14553 (W.D. Ky. 1993 ).

18. Horseplay.

It seems to be the general rule that compensation is not recoverable for injuries sustained through horseplay, done independently of and unconnected with the work of employment. Kearns v. Brown, 627 S.W.2d 589, 1982 Ky. App. LEXIS 199 (Ky. Ct. App. 1982).

Where a material fact issue existed as to whether the driver of an automobile in which a fellow employee was killed was acting in the scope and course of his employment so as to afford him fellow employee immunity, or whether the driver had been engaged in horseplay with the driver of an approaching vehicle so as to preclude him from being entitled to fellow employee immunity, it was error for the trial court to have granted summary judgment in favor of the driver. Kearns v. Brown, 627 S.W.2d 589, 1982 Ky. App. LEXIS 199 (Ky. Ct. App. 1982).

Because a material issue of fact existed as to whether teacher’s conduct in approaching co-worker from behind and intentionally placing her knee to the back of co-worker’s knee, causing co-worker to fall, constituted a willful and unprovoked act of aggression thereby falling outside of the immunity of this section, co-worker was able to proceed with her common-law action against teacher under KRS 342.700(1). To prevent double recovery, school board would be allowed to recoup from any award sums it paid to co-worker in workers’ compensation benefits; school board would not be entitled to recoupment for items other than lost wages and medical expenses, e.g., pain and suffering. Russell v. Able, 931 S.W.2d 460, 1996 Ky. App. LEXIS 132 (Ky. Ct. App. 1996).

Workers’ compensation was the exclusive remedy of an injured worker who suffered a hearing loss at work when a supervisor sounded a boat horn as part of an overall plan to motivate employees, and the employer and the supervisors were thus immune from civil suit pursuant to KRS 342.690 ; there was no evidence of an ill intent or motive on the supervisor’s part, and summary judgment in favor of the employer and the supervisors in the injured worker’s civil suit was affirmed. Haines v. Bellsouth Telcoms., Inc., 133 S.W.3d 497, 2004 Ky. App. LEXIS 104 (Ky. Ct. App. 2004).

Where an employee worked as a salesperson for a car dealership, where the dealership’s majority shareholder owned a yet-to-open ATV dealership, where the shareholder instructed the employee to ride as a passenger on an ATV for a test run, where the ATV flipped during the test run and the employee sustained serious injury, where the employee applied for and received workers’ compensation benefits, and where the employee thereafter filed a negligence action against the car dealership, the shareholder, and the ATV dealership, summary judgment was properly granted in favor of the three defendants because the employee held dual employment status inasmuch as he held a salesperson’s license for both the car dealership and the ATV dealership; because both dealerships were his employers and he was injured during the course of his employment, both dealerships, as employers, were entitled to immunity. Further, the court rejected the employee’s argument that the shareholder was engaged in horseplay that was outside the scope of employment and concluded that, although the shareholder may have acted recklessly in operating the ATV, his actions were nonetheless within the scope of his employment, thereby affording him immunity. Helton v. Tri-County Cycles Barbourville, LLC, 2010 Ky. App. LEXIS 47 (Ky. Ct. App. Feb. 19, 2010).

19. Proof.

Party pursuing claim for indemnification under this section is not required to demonstrate a total absence of negligence on its part. Union Carbide Corp. v. Sweco, Inc., 610 S.W.2d 932, 1980 Ky. App. LEXIS 413 (Ky. Ct. App. 1980).

Where defendant/subcontractor asserted the “up the ladder” defense against construction worker/claimant, the contention was at odds with many of the documents and the admissions made by subcontractor and with other evidence. As such, there was a material issue of fact and reversal was required. Goldsmith v. Allied Bldg. Components, Inc., 833 S.W.2d 378, 1992 Ky. LEXIS 99 ( Ky. 1992 ).

Certification of coverage from the Kentucky Department of Workers’ Claims or an uncontroverted affidavit from the employer’s insurer is prima facie proof that a company has secured payment of compensation for the purposes of KRS 342.690(1). Absent evidence that the coverage was in some way deficient as to a worker, such a showing is enough to invoke the exclusive remedy provision of KRS 342.690(1), if applicable. GE v. Cain, 236 S.W.3d 579, 2007 Ky. LEXIS 173 ( Ky. 2007 ).

20. Automobile Insurance Benefits.

An injured party is not precluded from receiving no-fault automobile insurance benefits simply because he is collecting workers’ compensation benefits from the same carrier. Affiliated FM Ins. Cos. v. Grange Mut. Casualty Co., 641 S.W.2d 49, 1982 Ky. App. LEXIS 260 (Ky. Ct. App. 1982).

A sanitation worker, who was struck and injured by a vehicle while loading refuse onto a sanitation truck owned by his employer, was not barred by his receipt of workers’ compensation benefits from recovering underinsured motorist benefits under a liability insurance policy issued to his employer; subsection (1) of this section does not preclude such a recovery since it only protected the employer and not its liability insurance carrier. Philadelphia Indem. Ins. Co. v. Morris, 990 S.W.2d 621, 1999 Ky. LEXIS 44 ( Ky. 1999 ).

Workers’ compensation is not an exclusive remedy under KRS 342.690(1) wherein the real party in interest is not the employer; instead, KRS 342.690(1) protects only the employer and its workers’ compensation carrier, not a separate underinsured motorist carrier. Samples v. Cincinnati Ins. Co., 2003 Ky. App. LEXIS 306 (Ky. Ct. App. Dec. 5, 2003), aff'd in part and rev'd in part, 192 S.W.3d 311, 2006 Ky. LEXIS 139 ( Ky. 2006 ).

Trial court erred in reducing a jury verdict for an employee in his suit against his employer’s underinsured motorist (UIM) insurer by the workers’ compensation benefits the employee had received as: (1) only the employer is protected by KRS 342.690(1); (2) KRS 342.700(1) only prohibits a double recovery as between the employer and the tortfeasor; (3) the collateral source rule provides an exception to the public policy against double recovery for those indemnified by insurance; (4) the employer obtained optional UIM coverage and the employee was a foreseeable driver under the policy; and (5) nothing in KRS 304.39-320 (1) indicates a preference on the part of the Legislature of the UIM carrier over the insured if there is to be a windfall to one or the other. Samples v. Cincinnati Ins. Co., 2003 Ky. App. LEXIS 306 (Ky. Ct. App. Dec. 5, 2003), aff'd in part and rev'd in part, 192 S.W.3d 311, 2006 Ky. LEXIS 139 ( Ky. 2006 ).

As an insurance policy excluded coverage of injuries to the insured’s employees, the insurer had no duty to defend or indemnify insureds against claims brought by the estates of two (2) employees who were killed during the course of their employment; the insured’s failure to obtain workers’ compensation coverage for its employees, and its potential liability to them in a civil action under KRS 342.690(2), did not enlarge the scope of coverage under the policy. Ind. Ins. Co. v. Brown, 2003 Ky. App. LEXIS 326 (Ky. Ct. App. Dec. 24, 2003), aff'd, 184 S.W.3d 528, 2005 Ky. LEXIS 392 ( Ky. 2005 ).

Decendent’s estate was able to recover benefits under the uninsured motorist (UM) and underinsured motorist (UIM) portions of a decedent’s motor vehicle insurance policy even though it was a coworker’s negligence that caused the accident that fatally injured the decedent; a coworker’s immunity from liability under the Kentucky Workers’ Compensation Act, KRS 342.690(1), did not preclude the estate from recovering UM benefits from the decedent’s policy because an injured employee who received workers’ compensation benefits had the right to seek additional coverage not only under his own UM or UIM policy but his employer’s as well. State Farm Mut. Auto. Ins. Co. v. Slusher, 2009 Ky. App. LEXIS 31 (Ky. Ct. App. Feb. 27, 2009), rev'd, 325 S.W.3d 318, 2010 Ky. LEXIS 276 ( Ky. 2010 ).

After workers’ compensation benefits pursuant to KRS ch. 342 had been paid, the estate of a deceased worker could not recover under the decedent’s personal policy of uninsured motorist and underinsured motorist protection for uncompensated injuries sustained in a work-related motor vehicle accident caused by the negligence of a co-worker. State Farm Mut. Auto. Ins. Co. v. Slusher, 325 S.W.3d 318, 2010 Ky. LEXIS 276 ( Ky. 2010 ).

21. Mental and Emotional Injury.

The Workers’ Compensation Law does not preclude a claim for damages for mental and emotional injury inflicted by sexually discriminatory practices. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

If the installation of the particular type of lift table that the employee installed was a “regular and recurrent” part of the employer’s work of the trade, business, occupation or profession, under KRS 342.610(2)(b), then the employer would be entitled to immunity as a contractor under KRS 342.690 . Franke v. Ford Motor Co., 398 F. Supp. 2d 833, 2005 U.S. Dist. LEXIS 26259 (W.D. Ky. 2005 ).

22. Bad Faith or Outrageous Conduct.

Even if the employer tried to induce the employee to sign a statement saying that the injury had not occurred while she was employed, such conduct did not constitute bad faith or outrageous conduct where the employee never acquiesced to signing the statement. Coker v. Daniel Constr. Co., 664 F. Supp. 1079, 1987 U.S. Dist. LEXIS 6781 (W.D. Ky. 1987 ), aff'd, 1988 U.S. App. LEXIS 22573 (6th Cir. Ky. June 3, 1988).

Firing of an employee in retaliation for filing a workers’ compensation claim can be the basis for a claim for outrageous conduct. Coker v. Daniel Constr. Co., 664 F. Supp. 1079, 1987 U.S. Dist. LEXIS 6781 (W.D. Ky. 1987 ), aff'd, 1988 U.S. App. LEXIS 22573 (6th Cir. Ky. June 3, 1988).

The employer’s filing of the false affidavits which caused in part the delay in payment of the employee’s medical bills did not constitute a cause of action for damages, as a civil action for damages does not lie for perjury made during litigation either by a party or a witness, and any delay caused by the filing of false affidavits is not grounds for suit for bad faith or outrageous conduct. Coker v. Daniel Constr. Co., 664 F. Supp. 1079, 1987 U.S. Dist. LEXIS 6781 (W.D. Ky. 1987 ), aff'd, 1988 U.S. App. LEXIS 22573 (6th Cir. Ky. June 3, 1988).

Insurer’s failure to pay questionable benefits did not rise to a level of extreme or outrageous conduct sufficient to waive the exclusive liability provisions of the Workers' Compensation Act. General Accident Ins. Co. v. Blank, 873 S.W.2d 580, 1993 Ky. App. LEXIS 182 (Ky. Ct. App. 1993).

Worker’s private cause of action against a workers’ compensation insurer was barred by the exclusive remedy provision of the workers’ compensation laws. Neither KRS 342.267 nor KRS 446.070 authorized the worker’s private cause of action against the workers’ compensation insurer for an alleged unfair claims settlement practice. Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 2003 Ky. LEXIS 86 ( Ky. 2003 ).

Circuit Court lacked jurisdiction over a worker’s bad faith suit against a workers’ compensation insurer arising from a work injury because KRS 342.690(1) shielded a covered employer and its insurer from any liability outside of the workers’ compensation remedy to a covered employee for damages arising out of a work-related injury; the insurer was entitled to a writ barring the Circuit Court from proceeding with the worker’s bad faith suit. Ky. Emplrs. Mut. Ins. v. Coleman, 236 S.W.3d 9, 2007 Ky. LEXIS 167 ( Ky. 2007 ).

23. Delay in Payment.

This section provides the exclusive remedy for the collection of compensation payments; a delay in the payment of certain medical bills does not give rise to a claim of bad faith or outrage. Zurich Ins. Co. v. Mitchell, 712 S.W.2d 340, 1986 Ky. LEXIS 275 ( Ky. 1986 ).

Delay in payment of medical bills does not give rise to a claim of bad faith or outrageous conduct. Coker v. Daniel Constr. Co., 664 F. Supp. 1079, 1987 U.S. Dist. LEXIS 6781 (W.D. Ky. 1987 ), aff'd, 1988 U.S. App. LEXIS 22573 (6th Cir. Ky. June 3, 1988).

24. Failure to Secure Compensation.

Where employer had taken no steps toward identification of himself as an employer operating under the Workers’ Compensation Law, employer was directly liable for workers’ compensation to employee who was totally permanently disabled and also liable to uninsured employer’s fund under its subrogation rights. Davis v. Turner, 519 S.W.2d 820, 1975 Ky. LEXIS 178 ( Ky. 1975 ).

The reference to “claim [for] compensation under this chapter” in subsection (2) of this section means that the employee may claim compensation from the employer and is not relegated to proceedings solely against the fund, which view is supported by the language of KRS 342.760 that imposes liability on the fund “when there has been a default in the payment of compensation due to the failure of an employer to secure payment of compensation as provided in this chapter,” which clearly means that the fund’s liability does not arise from the failure of the employer to provide insurance or security, but from a default in the payment of compensation due thereto. Davis v. Turner, 519 S.W.2d 820, 1975 Ky. LEXIS 178 ( Ky. 1975 ).

An employer who fails to secure payment of workers’ compensation benefits is not entitled to benefit from the exclusive liability provision, even if an “up-the-ladder” contractor is liable for payment of benefits. Matthews v. G & B Trucking, Inc., 987 S.W.2d 328, 1998 Ky. App. LEXIS 118 (Ky. Ct. App. 1998).

The defendant was not entitled to the protection of the statute, notwithstanding evidence that it employed the plaintiff, where there was no evidence that the defendant paid for workers’ compensation coverage. Becht v. Owens-Corning Fiberglas Corp., 196 F.3d 650, 1999 FED App. 0384P, 1999 U.S. App. LEXIS 29683 (6th Cir. Ky. 1999 ).

Evidence that a company had workers’ compensation insurance in Kentucky, as certified by the Kentucky Department of Workers’ Claims, sufficiently supported a finding that the company had secured payment of compensation for purposes of KRS 342.690(1). A company officer’s lack of knowledge regarding the coverage provided by the insurance policy did not rebut the presumption created by the certificate. Reichwein v. Jackson Purchase Energy Corp., 397 S.W.3d 413, 2012 Ky. App. LEXIS 185 (Ky. Ct. App. 2012).

25. Conflicts of Laws.

Although an employee who died in an accident in Kentucky was a Minnesota resident who had entered into an employment contract in Minnesota with a Minnesota employer, the occurrence of the accident in Kentucky was sufficient contact for a Kentucky court to apply Kentucky law, including the exclusive remedy provisions of KRS 342.690(1). Reichwein v. Jackson Purchase Energy Corp., 397 S.W.3d 413, 2012 Ky. App. LEXIS 185 (Ky. Ct. App. 2012).

26. Appealability.

Collateral-order exception allowed review of an order denying summary judgment in favor of a contractor and its parent company, which they sought on the basis of immunity from suit based on the exclusive nature of Kentucky Workers' Compensation Act. Black v. Dixie Consumer Prods. LLC, 835 F.3d 579, 2016 FED App. 6, 0213P, 2016 U.S. App. LEXIS 15924 (Aug. 29, 2016).

Cited:

M.J. Daly Co. v. Varney, 695 S.W.2d 400, 1985 Ky. LEXIS 226 ( Ky. 1985 ), overruled, United States Fid. & Guar. Co. v. Technical Minerals, 934 S.W.2d 266, 1996 Ky. LEXIS 117 ( Ky. 1996 ), overruled in part as stated, Labor Ready, Inc. v. Johnston, 289 S.W.3d 200, 2009 Ky. LEXIS 153 ( Ky. 2009 ); Sublett v. Tennessee Valley Authority, 726 F. Supp. 1077, 1989 U.S. Dist. LEXIS 15284 (W.D. Ky. 1989 ); Zurich Am. Ins. Co. v. Haile, 882 S.W.2d 681, 1994 Ky. LEXIS 89 ( Ky. 1994 ); Thompson v. Budd Co., 199 F.3d 799, 1999 U.S. App. LEXIS 32121 (6th Cir. 1999); McLain v. Dana Corp., 16 S.W.3d 320, 1999 Ky. App. LEXIS 133 (Ky. Ct. App. 1999); Roberts v. George W. Hill & Co., 113 S.W.3d 156, 2003 Ky. LEXIS 168 ( Ky. 2003 ); Rehm v. Clayton, 132 S.W.3d 864, 2004 Ky. LEXIS 86 ( Ky. 2004 ); McDonald’s Corp. v. Ogborn, 309 S.W.3d 274, 2009 Ky. App. LEXIS 236 (Ky. Ct. App. 2009); Ford Motor Co. v. Sheets, 2019 Ky. App. LEXIS 37 (Ky. Ct. App. Mar. 22, 2019); Recbar, LLC v. Drake, 579 S.W.3d 198, 2019 Ky. App. LEXIS 120 (Ky. Ct. App. 2019).

Notes to Unpublished Decisions

Analysis

  1. Liability on Tort Claim.
  2. Contractor.
  3. Liability on Tort Claim.
  4. Action by Third Party.
  5. Relationship with other laws.
1. Liability on Tort Claim.

Unpublished decision: Machine company was protected from tort liability under the exclusive-remedy provision of Kentucky’s Workers’ Compensation Act, KRS 342.690 , for the death of a subcontractor’s worker while performing repair work on machinery used by a coal mine because the company, and not the coal mine, controlled the nature and extent of the subcontractor’s participation in the repair work, and the fact that the subcontractor was expected to submit an invoice directly to the coal mine did not establish agency because such direct submission was done to save the coal mine a contractual fee. Mining Mach., Inc. v. Copley, 145 Fed. Appx. 149, 2005 FED App. 0714N, 2005 U.S. App. LEXIS 17823 (6th Cir. Ky. 2005 ).

2. Contractor.

Unpublished decision: Issue of fact as to whether defendant company qualified as a contractor, where plaintiffs offered evidence that the work of a decedent and his employer at the time of the accident at issue was maintenance and that maintenance was not a regular or recurrent part of the company’s business. Smith v. N. Am. Stainless, L.P., 158 Fed. Appx. 699, 2005 FED App. 0976N, 2005 U.S. App. LEXIS 27873 (6th Cir. Ky. 2005 ).

Unpublished decision: Summary judgment was properly entered for an automobile company, which was sued by a truck driver who was injured while making a routine delivery to one of the company’s plants; the company was entitled to “up the ladder” immunity under Kentucky Worker’s Compensation Act (KWCA) because: (1) the driver’s employer was one of the company’s subcontractors because it regularly delivered automotive parts between the company’s manufacturing plants; (2) the company was, therefore, a “contractor” as that term was defined in KRS 342.610(2)(b); and (3) it was entitled to immunity under KRS 342.690 (1997) because the employer, its subcontractor, had already secured worker’s compensation benefits for the driver under the KWCA. Giles v. Ford Motor Co., 123 Fed. Appx. 190, 2005 U.S. App. LEXIS 2286 (6th Cir. Ky. 2005 ).

Unpublished decision: Company was not a contractor for purposes of “up-the-ladder” immunity, where the company contracted with another entity to provide and install equipment that would become a melt shop. Although melt shop equipment required routine maintenance, the company offered no evidence that it contracted with the other entity to provide such maintenance; rather, the other entity contracted to provide and install the equipment. Smith v. N. Am. Stainless, L.P., 158 Fed. Appx. 699, 2005 FED App. 0976N, 2005 U.S. App. LEXIS 27873 (6th Cir. Ky. 2005 ).

Unpublished decision: Because the U.S. had taken advantage of the “up-the-ladder” immunity provision of KRS 342.690(1), and given that the duties plaintiff was performing at the time of the accident were a regular part of the maintenance performed at the fort, the U.S. was entitled to immunity under KRS 342.690(1). McWhinnie v. United States, 2009 U.S. App. LEXIS 29557 (6th Cir. Ky. Nov. 25, 2009).

Unpublished decision: General contractor was immune from tort liability because its installation work could be classified as recurrent work; the contractor entered into eight sales contracts within the last ten years to provide installation services. In addition, the contractor stated that when installation services were provided, they are part and parcel of the contract for sale of equipment to the customer; these were clear indications that the contractor provided recurrent work for installation services as defined by the Kentucky courts. Dilts v. United Group Servs., LLC, 500 Fed. Appx. 440, 2012 FED App. 1013N, 2012 U.S. App. LEXIS 19717 (6th Cir. Ky. 2012 ), cert. denied, 569 U.S. 957, 133 S. Ct. 2022, 185 L. Ed. 2d 885, 2013 U.S. LEXIS 3458 (U.S. 2013).

Unpublished decision: District court improperly found that a corporation and its subsidiary were immune from tort liability under KRS 342.690(1) on the basis that an injured employee had already received workers’ compensation from the direct employer because they failed to show that they were contractors under KRS 342.610(2) since they did not produce evidence that established that the work the employee performed at the time of the injury was the type of work that they or similar businesses would be expected to perform with their own employees. Black v. Dixie Consumer Prods. LLC, 516 Fed. Appx. 412, 2013 FED App. 0198N, 2013 U.S. App. LEXIS 3805 (6th Cir. Ky. 2013 ).

3. Liability on Tort Claim.

Unpublished decision: Even accepting the employees' allegations as true, they failed to allege facts from which to infer that the employer harbored specific intent to injure; without that intent, the employees' claims did not fall within the Kentucky Workers' Compensation Act's deliberate-intention exception. Cox v. Koninklijke Philips, N.V., 647 Fed. Appx. 625, 2016 FED App. 0252N, 2016 U.S. App. LEXIS 8688 (6th Cir. Ky. 2016 ).

4. Action by Third Party.

Unpublished decision: Third-party defendant employer's payment of workers' compensation did not prevent a third-party plaintiff from seeking indemnification from the employer pursuant to the parties' contracts. Konecranes, Inc. v. Cent. Motor Wheel of Am., Inc., 642 Fed. Appx. 554, 2016 FED App. 0118N, 2016 U.S. App. LEXIS 4059 (6th Cir. Ky. 2016 ).

5. Relationship with other laws.

Unpublished decision: In a state-law employment discrimination case in which an employee appealed a district court's dismissal of her negligent hiring, retention, and supervision, causing her emotional distress, those claims were pre-empted by the exclusivity provision of the Kentucky Workers' Compensation Act. Roof v. Bel Brands USA, Inc., 641 Fed. Appx. 492, 2016 FED App. 0084N, 2016 U.S. App. LEXIS 2299 (6th Cir. Ky. 2016 ).

Opinions of Attorney General.

A fire fighter in the employ of a fire protection district is automatically covered under workers’ compensation; if the employee had an active prior disability at the time of his hiring by the fire district, then under KRS 342.120(3) the fire district is only responsible for the degree of injury which results while in its employ and is not responsible for that part of the employee’s disability which is attributable to his prior injury, and the fire fighter cannot sue the district at common law for his job-related injury, unless the district fails to secure compensation insurance or be a self-insurer, or the fire fighter opts out of workers’ compensation under KRS 342.650(6) and rules of the Workers’ Compensation Board. OAG 80-370 .

Research References and Practice Aids

Kentucky Bench & Bar.

Jones, Preparation and Presentation of the Workers’ Compensation Defense Case, Vol. 50, No. 2, Spring 1986 Ky. Bench & B. 24.

Arnzen and Malloy, An Insurer’s Refusal to Settle Within Policy Limits — Third Party Bad Faith in Kentucky, Volume 50, No. 3, Summer 1986 Ky. Bench & B. 12.

Main, Worker’s Compensation as the Exclusive Remedy for Work-Related Psychological Injury, Volume 50, No. 3, Summer 1986 Ky. Bench & B. 18.

Cooper, The “Comp” Factor in Tort Cases, 51 Ky. Bench & B. 14 (1987).

Fogle, Workplace Injuries: Exclusive Remedy in the New Millennium, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 31.

Kentucky Law Journal.

Braden, An Insurer’s Liability to Third Parties for Negligent Inspection, 66 Ky. L.J. 910 (1977-1978).

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Rogers, Apportionment in Kentucky After Comparative Negligence, 75 Ky. L.J. 103 (1986-87).

Note, Apportioning Liability to Nonparties in Kentucky Tort Actions: A Natural Extensions of Comparative Fault or a Phantom Scapegoat for Negligent Defendants? 82 Ky. L.J. 789 (1993-94).

Baugh, Worker’s Compensation: Temporary Employees and the Exclusiveness-of-Remedy Provisions, 86 Ky. L.J. 1 (1997-98).

Northern Kentucky Law Review.

King, Workers’ Compensation Update 1992-1993, 21 N. Ky. L. Rev. 329 (1994).

Hawkins and MacGillivray, A Summary of Kentucky Employment Law Decisions, 21 N. Ky. L. Rev. 357 (1994).

Kemp & Kemp, Kentucky Workers’ Compensation Law Update: Issues Facing Employers, Employees, Medical Providers, Insurers and Practitioners as House Bill 1 Continues to Evolve, 26 N. Ky. L. Rev. 67 (1999).

Jackson and Crase, A Surveyof Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

Bales and Korb, A Survey of Kentucky Employment Compensation Law: A Look At Employment Discrimination Claims Brought Under the Kentucky Civil Rights Act, 30 N. Ky. L. Rev. 71 (2003).

Burns & Fischesser, A Survey of Kentucky Employment Law., 31 N. Ky. L. Rev. 85 (2004).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Defense of Exclusive Remedy, Form 281.26.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Master and Servant, § 282.00.

ALR

Workmen’s compensation provision as precluding employee’s action against employer for fraud, false imprisonment, defamation, or the like. 46 A.L.R.3d 1279.

What conduct is willful, intentional, or deliberate within Workmen’s Compensation Act provision authorizing tort action for such conduct. 96 A.L.R.3d 1064.

Workmen’s Compensation Act as furnishing exclusive remedy for employee injured by product manufactured, sold, or distributed by employer. 9 A.L.R.4th 873.

342.700. Remedies when third party is legally liable — Liability and indemnification rights of principal contractors, intermediates, and subcontractors — Requirement of waiver of remedies for award of contract unlawful.

  1. Whenever an injury for which compensation is payable under this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages, the injured employee may either claim compensation or proceed at law by civil action against the other person to recover damages, or proceed both against the employer for compensation and the other person to recover damages, but he shall not collect from both. If the injured employee elects to proceed at law by civil action against the other person to recover damages, he shall give due and timely notice to the employer and the special fund of the filing of the action. If compensation is awarded or paid under this chapter, the employer, his insurance carrier, the special fund, the Kentucky coal workers’ pneumoconiosis fund, and the uninsured employer’s fund, or any of them, having paid the compensation or having become liable therefor, may recover in his or its own name or that of the injured employee from the other person in whom legal liability for damages exists, not to exceed the indemnity and medical expenses paid and payable to or on behalf of the injured employee, less a pro rata share of the employee’s legal fees and expense. The notice of civil action shall conform in all respects to the requirements of KRS 411.188(2).
  2. A principal contractor, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any one (1) of his intermediate or subcontractors and engaged upon the subject matter of the contract, to the same extent as the immediate employer. Any principal, intermediate, or subcontractor who pays the compensation may recover the amount paid from any subordinate contractor through whom he has been rendered liable under this section. Every claim to compensation under this subsection shall in the first instance be presented to and instituted against the immediate employer, but the proceedings shall not constitute a waiver of the employee’s rights to recover compensation under this chapter from the principal or intermediate contractor nor shall the claim be barred by limitations, if the claim is filed against the principal or intermediate contractor within one (1) year after a final unappealed order has been rendered by an administrative law judge determining that immediate employer has insufficient security to pay the full and maximum benefits that could be determined to be due him under this chapter. The collection of full compensation from one employer shall bar recovery by the employee against any other. But he shall not collect from all a total compensation in excess of the amount for which his immediate employer is liable. This subsection shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are under his control otherwise or management.
  3. It shall be considered to be contrary to public policy and unlawful for any owner or employer to require another employer to waive its remedies granted by this section as a condition of receiving a contract or purchase order. Furthermore, in selecting between two (2) or more contractors or suppliers, consideration may not be given by an owner or employer to whether one (1) contractor or supplier voluntarily waives its remedies under this section or offers to accept lesser compensation than another contractor or supplier for that waiver of remedies.

HISTORY: Enact. Acts 1972, ch. 78, § 10, effective January 1, 1973; amend. 1987 (Ex. Sess.), ch. 1, § 53, effective January 4, 1988; 1994, ch. 181, Part 14, § 71, effective April 4, 1994; 1994, ch. 495, § 1, effective July 15, 1994; 1996 (1st Ex. Sess.), ch. 1, § 65, effective December 12, 1996; 2000, ch. 514, § 27, effective July 14, 2000; 2018 ch. 40, § 12, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). This statute was amended in Section 12 of 2018 Ky. Acts ch. 40. Subsection (1) of Section 20 of that Act reads, “Sections 1, 3, and 12 of this Act shall apply to any claim arising from an injury or occupational disease or last exposure to the hazards of an occupational disease or cumulative trauma occurring on or after the effective date of this Act.”

NOTES TO DECISIONS

  1. Insurance Carrier.
  2. — Liability.
  3. — Indemnity.
  4. Contractors and Subcontractors.
  5. — Pro Rata Distribution.
  6. Statutory Employer.
  7. Implied Right of Recovery or Recoupment.
  8. Dual Capacity Doctrine.
  9. Double Recovery.
  10. Unemployment Compensation Claimant.
  11. Subrogation.
  12. — Comparative Negligence.
  13. Legal Liability.
  14. Limitation on Employer's Liability.
  15. Settlement with Third Party.
  16. Litigation Expenses.
  17. Attorney Fees.
  18. Statute of Limitations.
  19. Fellow Employee.
  20. Uninsured Motorist.
  21. Underinsured Motorist.
  22. Contractor.
1. Insurance Carrier.

Where the rights of the compensation insurance carrier afforded by this section and CR 24.01 provide an adequate opportunity for reimbursement of compensation outlay, there is no need to grant the carrier the parallel action of indemnity. American States Ins. Co. v. Audubon Country Club, 650 S.W.2d 252, 1983 Ky. LEXIS 245 ( Ky. 1983 ).

The insurer’s conflict of interest as workers’ compensation carrier for the decedents’ employer and liability insurer for a defendant in the wrongful death action did not bar it from claiming a credit against the recovery, where there was no overreaching, duress, or misrepresentation by the insurer. Old Republic Ins. Co. v. Ashley, 722 S.W.2d 55, 1986 Ky. App. LEXIS 1491 (Ky. Ct. App. 1986).

The possibly negligent use of a drill rig by plaintiff ’s employer should not serve to prevent the right of reimbursement clearly provided for an insurance carrier by subsection (1) of this section as, where an insurance carrier is providing benefits as a matter of contract, the employer’s negligence is not imputed to the insurer. Ingersoll-Rand Co. v. Rice, 775 S.W.2d 924, 1988 Ky. App. LEXIS 207 (Ky. Ct. App. 1988).

2. — Liability.

A workers’ compensation insurance carrier who was obligated under KRS 342.365 to pay benefits to personal representative of a deceased employee of the insured was also subject to a suit under law that provided that whenever some other person other than the employer was liable to pay damages, employee could either claim compensation or proceed against the third party as a negligent third party for its failure to make adequate safety inspection. Bryant v. Old Republic Ins. Co., 431 F.2d 1385, 1970 U.S. App. LEXIS 7109 (6th Cir. Ky. 1970 ) (decided under prior law).

Where the employee was injured while making a delivery to the private cabin owned by the employer’s general manager, an award against the employer did not provide immunity under law releasing employer from liability upon payment of workers’ compensation and the fellow employee doctrine from an action for negligence against the general manager in his private capacity as owner of the cabin. Wallace v. Wathen, 476 S.W.2d 829, 1972 Ky. LEXIS 395 ( Ky. 1972 ) (decided under prior law).

3. — Indemnity.

Even though the insurance carrier had previously been paid for destruction of decedent’s power to earn money from the proceeds of settlement of wrongful death action filed by the deceased worker’s personal representative, the insurance carrier for the worker’s employer could, in an action for indemnity against the party responsible for the accident, collect the compensation payments and hospital expenses paid by it prior to the worker’s death. Liberty Mut. Ins. Co. v. Louisville & N. R. Co., 455 S.W.2d 537, 1970 Ky. LEXIS 252 ( Ky. 1970 ) (decided under prior law).

The right of indemnity exists independent of the law and, therefore, the elements of statutory subrogation do not control. Liberty Mut. Ins. Co. v. Louisville & N. R. Co., 455 S.W.2d 537, 1970 Ky. LEXIS 252 ( Ky. 1970 ) (decided under prior law).

Where the payment made by a third party did not represent a recovery by the employee of a sum for which the third party was legally liable, the third party’s compensation carrier was not entitled to recover the amount of the compensation payments it had made. Ashland Oil & Refining Co. v. General Tel. Co., 462 S.W.2d 190, 1970 Ky. LEXIS 652 ( Ky. 1970 ) (decided under prior law).

4. Contractors and Subcontractors.

The general contractor is in effect made the employer of the employee of the subcontractor or of a loaned servant for the purposes of workers’ compensation and the general contractor thereby enjoys the immunity of an employer from suits when the facts are such that he could be made liable for compensation. United Engineers & Constructors, Inc. v. Branham, 550 S.W.2d 540, 1977 Ky. LEXIS 442 ( Ky. 1977 ).

Where construction company had leased crane “fully operated and maintained” and lessor’s employee, working as an oiler, was injured during the construction project, “up-the-ladder” doctrine precluded recovery from construction company because the relationship between the construction company and the lessor was that of contractor and subcontractor. United Engineers & Constructors, Inc. v. Branham, 550 S.W.2d 540, 1977 Ky. LEXIS 442 ( Ky. 1977 ).

Where a claimant was injured while in the employment of a subcontractor and the contractor had no immediate employees and was not therefore an employer under KRS 342.630 , the contractor could nonetheless be held liable to the claimant. Mills v. Arthur Constr. Co., 559 S.W.2d 742, 1977 Ky. App. LEXIS 873 (Ky. Ct. App. 1977).

Contractors and subcontractors need not also be employers under KRS 342.630 in order to be liable, since they will be treated in effect as the employer of an injured claimant for the purposes of the Workers' Compensation Act. Mills v. Arthur Constr. Co., 559 S.W.2d 742, 1977 Ky. App. LEXIS 873 (Ky. Ct. App. 1977).

Where written contract between chemical company and labor management company expressly provided that labor management company would be responsible for workers’ compensation for employees furnished to chemical company, employee of labor management company injured while performing services for chemical company could sue chemical company for negligence in causing his injuries; however, chemical company by its contract could require indemnification for any liability in tort that might occur by reason of utilizing the services of labor management company. M.J. Daly Co. v. Varney, 695 S.W.2d 400, 1985 Ky. LEXIS 226 ( Ky. 1985 ).

Where the injured party was injured while performing work for the employer, who had been hired by the retailer and subsidiary to perform work regularly performed as a part of the retailer’s business, the trial court properly granted summary judgment pursuant to CR 56 in favor of the retailer and subsidiary in the injured party’s negligence action; the retailer was a contractor and the employer was a subcontractor under KRS 342.610(2), and as a result, the retailer and subsidiary were liable for workers’ compensation under KRS 342.700(2) and 342.690(1). Wright v. Dolgencorp, Inc., 161 S.W.3d 341, 2004 Ky. App. LEXIS 280 (Ky. Ct. App. 2004).

Trial court’s finding that an auction business had up-the ladder immunity in a claim brought by a worker allegedly injured by the negligence of a temporary employee working for the auction business was error because the auction business was a contractor and the temporary service was a subcontractor, and as a contractor, the auction business was liable to the temporary service’s employees for workers’ compensation, but was immune from civil suit by those employees. Johnston v. Labor Ready, Inc., 2007 Ky. App. Unpub. LEXIS 250 (Ky. Ct. App. Apr. 6, 2007), aff'd, 289 S.W.3d 200, 2009 Ky. LEXIS 153 ( Ky. 2009 ).

In a workers' compensation case, a land developer was not a benefit claimant's statutory employer because building homes was not typically a regular or recurrent part of the work of the business of land development; moreover, the land developer was not involved in the construction of the home and could not have been held liable as an up-the-ladder employer. The homeowner was also not liable as the employer because she had no experience building homes, was living in Mexico at the time of construction, and did not provide material, tools, or workers. Uninsured Emplr.' Fund v. Poplar Brook Dev., 2015 Ky. App. LEXIS 145 (Ky. Ct. App. Oct. 9, 2015), aff'd, 2016 Ky. Unpub. LEXIS 72 (Ky. Sept. 22, 2016).

5. — Pro Rata Distribution.

Although compensation benefits are calculated on the basis of lost earnings, the percentage of disability reflects the loss of future earnings and earning power as well, and to the extent that the claimant recovers these items of damage against a third-party tort-feasor, the compensation carrier is subrogated and entitled to be reimbursed before the claimant collects. To the extent, however, that the recovery against the tort-feasor represents items of damage (e.g., pain and suffering) not covered by workers’ compensation, the carrier has no right against that recovery at all. Hillman v. American Mut. Liability Ins. Co., 631 S.W.2d 848, 1982 Ky. LEXIS 242 ( Ky. 1982 ).

In action by claimant against third-party tort-feasor, wherein compensation carrier intervened to assert its claim for subrogation and where the trial court made specific findings on each item of damages claimed but the defendants’ only asset, an insurance policy, was not enough to pay the amount of the judgment, the claimant and the carrier were entitled to share the amount recoverable pro rata, as between the portion of the judgment subject to subrogation (representing last earnings and earning power and medical expenses paid) and the portion not subject to subrogation (for pain and suffering). Hillman v. American Mut. Liability Ins. Co., 631 S.W.2d 848, 1982 Ky. LEXIS 242 ( Ky. 1982 ).

6. Statutory Employer.

Where a general employer’s worker is sent to assist a special employer’s work, that worker may become the “loaned servant” of the special employer in the eyes of the law. If one is a “loaned servant” of the special employer, the special employer is not “some other person than the employer” as used in subsection (1) of this section, and the statutory bar does not apply; the special employer in this situation becomes the “statutory employer.” Allied Machinery, Inc. v. Wilson, 673 S.W.2d 728, 1984 Ky. App. LEXIS 555 (Ky. Ct. App. 1984).

Where a truck owner company assigned its employee to help the mechanic of a truck repair company fix one of the owner company’s trucks, and the employee had worked under the mechanic’s detailed directions for three straight days at the time of his injury, the employee was the loaned employee of the repair company at the time he was injured; thus, since the repair company was therefore a “statutory employer” under the Workers’ Compensation Act, the injured employee had no cause of action against it or the mechanic. Allied Machinery, Inc. v. Wilson, 673 S.W.2d 728, 1984 Ky. App. LEXIS 555 (Ky. Ct. App. 1984).

7. Implied Right of Recovery or Recoupment.

Employer city had implicit right of recovery or recoupment under this section, based on a claim for money had and received by employee policeman for the use of the city’s workers’ compensation fund, where employee injured in course of employment failed to give due and timely notice under this section to the city, of the filing of an action against the tort-feasor and such failure affected the city’s right of recovery from the tort-feasor; moreover, the city’s right of recovery was not derivative and not precluded from recovery in excess of amount employee had under no-fault statute, KRS 304.39-060 . Louisville v. Burch, 611 S.W.2d 532, 1981 Ky. App. LEXIS 222 (Ky. Ct. App. 1981).

8. Dual Capacity Doctrine.

Adoption of the “dual capacity doctrine,” whereby an employer is liable in tort to his employee in addition to being liable for the employee’s workers’ compensation benefit, is prohibited by the language of KRS 342.690 and this section, since such language evinces an intent to maintain the exclusivity of remedy principle intact. Borman v. Interlake, Inc., 623 S.W.2d 912, 1981 Ky. App. LEXIS 299 (Ky. Ct. App. 1981).

9. Double Recovery.

This section expresses a clear legislative intent that an injured employee should not be allowed to recover from both the compensation carrier and a third-party tort-feasor. Davis v. Buley, 634 S.W.2d 161, 1982 Ky. App. LEXIS 217 (Ky. Ct. App. 1982).

Where award issued to injured employee was open-ended “for the duration of his disability,” so that it was uncertain how much he would receive in terms of a workers’ compensation award it would be inequitable to allow him to receive both settlement from third-party tort-feasor and bi-weekly payments from uninsured employee’s fund with the promise that the settlement would be used as a credit against the “long-end of the award.” Therefore the award should have been offset by the settlement already received. Davis v. Buley, 634 S.W.2d 161, 1982 Ky. App. LEXIS 217 (Ky. Ct. App. 1982).

The policy behind subsection (1) of this section is that an injured employee should not recover from both the workers’ compensation carrier and a third-party tortfeasor. Old Republic Ins. Co. v. Ashley, 722 S.W.2d 55, 1986 Ky. App. LEXIS 1491 (Ky. Ct. App. 1986).

Victim’s recovery from driver and owner of other automobile in civil action, pursuant to employer’s assignment of rights in supplemental agreement to settlement of her worker’s compensation action, did not constitute double recovery, nor does it offend any policy considerations. Weinberg v. Crenshaw, 896 S.W.2d 22, 1995 Ky. App. LEXIS 60 (Ky. Ct. App. 1995).

Employer’s contention that allowing workers’ compensation claimant to retain the interest on his recovery against third party tortfeasor would amount to a double recovery for claimant was without merit, as interest on the settlement received by claimant was not funds recovered or “collected” from employer or third party tortfeasor. Huston Barger Masonry v. Farris, 924 S.W.2d 838, 1996 Ky. App. LEXIS 52 (Ky. Ct. App. 1996).

KRS 342.700(1) merely establishes a right of subrogation to an employer or its workers’ compensation carrier as the phrase “the other person in whom legal liability for damages exists” in KRS 342.700(1) quite clearly refers to the third-party tortfeasor who is liable at common law; thus, KRS 342.700(1) only prohibits a double recovery as between the employer and the tortfeasor. Samples v. Cincinnati Ins. Co., 2003 Ky. App. LEXIS 306 (Ky. Ct. App. Dec. 5, 2003), aff'd in part and rev'd in part, 192 S.W.3d 311, 2006 Ky. LEXIS 139 ( Ky. 2006 ).

Trial court erred in reducing a jury verdict for an employee in his suit against his employer’s underinsured motorist (UIM) insurer by the workers’ compensation benefits the employee had received as: (1) only the employer is protected by KRS 342.690(1); (2) KRS 342.700(1) only prohibits a double recovery as between the employer and the tortfeasor; (3) the collateral source rule provides an exception to the public policy against double recovery for those indemnified by insurance; (4) the employer obtained optional UIM coverage and the employee was a foreseeable driver under the policy; and (5) nothing in KRS 304.39-320 (1) indicates a preference on the part of the Legislature of the UIM carrier over the insured if there is to be a windfall to one or the other. Samples v. Cincinnati Ins. Co., 2003 Ky. App. LEXIS 306 (Ky. Ct. App. Dec. 5, 2003), aff'd in part and rev'd in part, 192 S.W.3d 311, 2006 Ky. LEXIS 139 ( Ky. 2006 ).

Court of Appeals erred in vacating an entire jury award of damages to an employee in his negligence action against a premises owner, arising from the employee’s slip and fall due to grease and oil on the premises floor while the employee was working on a job assignment for his own employer, as only those portions of the jury award which were duplicated in benefits received by the employee from his own employer in a workers’ compensation proceeding were to be vacated, pursuant to KRS 342.700(1); double recovery was prohibited, but as to those awards which were not reflected in the workers’ compensation proceeding, the employee was entitled to that recovery. Krahwinkel v. Commonwealth Aluminum Corp., 2005 Ky. LEXIS 238 (Ky. Aug. 25, 2005), sub. op., 183 S.W.3d 154, 2005 Ky. LEXIS 394 ( Ky. 2005 ).

When an employee is injured due to the actions of a third party, KRS 342.700(1) clearly precludes double recovery by an employee, and does not condition that preclusion upon whether the employer actually pursues its subrogation right; an employee of an independent contractor seeking damages for injuries sustained in a fall at the plant of an owner was not permitted to recover from the owner those elements of damages that he had already recovered from the independent contractor by way of workers’ compensation benefits. Krahwinkel v. Commonwealth Aluminum Corp., 183 S.W.3d 154, 2005 Ky. LEXIS 394 ( Ky. 2005 ).

The mandate in KRS 342.700(1) that “he shall not collect from both” was a limitation on the rights of a worker that was attendant to his right to collect workers’ compensation benefits; a driver injured in a traffic accident could not have recovered damages duplicating workers’ compensation benefits against tortfeasor, and so, he was not entitled to recover those same damages against his underinsured motorist insurer. Cincinnati Ins. Co. v. Samples, 192 S.W.3d 311, 2006 Ky. LEXIS 139 ( Ky. 2006 ).

Employee was precluded from recovering any amount in her action against her employer that duplicated the amount she received in the form of workers’ compensation benefits, since her recovery of these amounts from a tortfeasor’s insurer was barred by KRS 342.700(1). Ky. Sch. Bd. Ass'n v. Jewell, 2008 Ky. App. LEXIS 49 (Ky. Ct. App.), sub. op., 2008 Ky. App. Unpub. LEXIS 881 (Ky. Ct. App. Mar. 7, 2008) (on other grounds).

Injured employee could pursue a civil suit against third-party contractors responsible for the employee’s carbon monoxide exposure and also seek workers’ compensation benefits, but the employee was prevented from receiving a double recovery because the employer had a right to subrogation under KRS 342.700(1) against the proceeds recovered in the civil action that duplicated workers’ compensation benefits. Wal-Mart Stores, Inc. v. Wells, 2010 Ky. App. LEXIS 43 (Ky. Ct. App. Feb. 19, 2010), aff'd, 2011 Ky. Unpub. LEXIS 9 (Ky. Jan. 20, 2011).

10. Unemployment Compensation Claimant.

There is nothing in the workers’ compensation statutes which would authorize the board to deny workers’ compensation benefits for the period of time that unemployment compensation benefits are received by a claimant; this section establishes no such requirement. Wells v. Jones, 662 S.W.2d 849, 1983 Ky. App. LEXIS 312 (Ky. Ct. App. 1983).

11. Subrogation.

Where defendant filed a products liability action against the manufacturer and the insurance carrier which had advanced the plaintiff sums of money under the Workers’ Compensation Act for an injury resulting from failure of a pneumatic die cushion, insurance carrier was permitted recovery on a cross-claim for sums paid the employee through the negligence of a third person by subrogation against the manufacturer. Conner v. Dayton Rogers Mfg. Co., 377 F. Supp. 937, 1974 U.S. Dist. LEXIS 8052 (E.D. Ky. 1974 ), aff'd, 524 F.2d 1405 (6th Cir. Ky. 1975 ).

Where employee recovered products liability claim from third party who was legally liable, even though liability of all defendants had not been determined, the employer, its insurance carrier and the special fund were subrogated by statute to the payments the employee had received from the alleged tort-feasor; their rights derive from the employee’s right to payment and are a corollary to the employee’s right to payment; therefore, employer was entitled to statutory subrogation not to exceed the indemnity paid and payable to the injured employee less employee’s legal fees and expenses. Mastin v. Liberal Markets, 674 S.W.2d 7, 1984 Ky. LEXIS 262 ( Ky. 1984 ).

Employer, insurance carrier and special fund were subrogated to amount employee recovered in products liability action; subrogation rights are statutory and limited to what the statute provides; thus, employer was not entitled to a front-end credit for their payment of her worker’s compensation attorney’s fees. For the same reason, employer’s statutory rights of subrogation could not attach to that portion of employee’s recovery from the third-party tort-feasor expressly excluded from such subrogation by the statutory phrase, “less the employee’s legal fees and expense” in effecting recovery from the third-party tort-feasor; employee was also entitled to deduct a share of her legitimate expenses incurred in connection with effecting the recovery in the products liability case in such proportion as the elements of her settlement subject to statutory subrogation bore to the elements of her settlement not subject to statutory subrogation. Mastin v. Liberal Markets, 674 S.W.2d 7, 1984 Ky. LEXIS 262 ( Ky. 1984 ).

A workers’ compensation carrier will be granted subrogation on those elements of a recovery against a third party which duplicate the elements covered by workers’ compensation. Old Republic Ins. Co. v. Ashley, 722 S.W.2d 55, 1986 Ky. App. LEXIS 1491 (Ky. Ct. App. 1986).

This section is equally applicable to provide subrogation rights where an employer is paying death benefits to a deceased employee’s statutory dependents. Brown v. YWCA, 729 S.W.2d 190, 1987 Ky. App. LEXIS 479 (Ky. Ct. App. 1987).

Under this section, the amount of credit entitled the employer’s workers’ compensation insurer was the amount “paid and payable” to the decedent’s child, who was the only claimant under the Workers’ Compensation Act because the decedent’s spouse, from whom she was separated at the time of death, was not receiving workers’ compensation death benefits. Brown v. YWCA, 729 S.W.2d 190, 1987 Ky. App. LEXIS 479 (Ky. Ct. App. 1987).

The rights to reimbursement and subrogation provided by this section are tied directly to the employee’s recovery of damages from a third party. Ingersoll-Rand Co. v. Rice, 775 S.W.2d 924, 1988 Ky. App. LEXIS 207 (Ky. Ct. App. 1988).

The provision in the compensation act for recovery by an employer or his insurance carrier from a third party tort-feasor for compensation paid or payable does not create a new cause of action, but merely transfers right of recovery. Waters v. Transit Authority of River City, 799 S.W.2d 56, 1990 Ky. App. LEXIS 107 (Ky. Ct. App. 1990).

An insurer’s statutory subrogation right under subsection (1) of this section is a derivative rather than an independent right. United States Fidelity & Guar. Co. v. Fox, 872 S.W.2d 91, 1993 Ky. App. LEXIS 169 (Ky. Ct. App. 1993).

An insurer is not entitled to claim subrogation in all sums awarded within particular categories of damages which are subject to subrogation if the proof adduced at trial shows that a significant portion of the jury’s award pertaining to a particular category of damages was awarded for damages which the insurer did not pay and was not liable to pay. United States Fidelity & Guar. Co. v. Fox, 872 S.W.2d 91, 1993 Ky. App. LEXIS 169 (Ky. Ct. App. 1993).

Tort-feasors are not entitled to a $10,000 credit under KRS 304.39-060 in actions pursuant to this section to recover workers’ compensation benefits paid to injured employees. Jefferson County Bd. of Educ. v. Estate of Cowles, 982 S.W.2d 224, 1998 Ky. App. LEXIS 112 (Ky. Ct. App. 1998).

Common law “made whole” rule did not apply to workers’ compensation insurer’s right to subrogation against a workers’ compensation benefits recipient’s judgment against a third party for his work-related injury; because KRS 342.700(1) specifies the parties’ subrogation rights the “made whole” rule cannot preclude the statutory recovery. AIK Selective Self Ins. Fund v. Bush, 74 S.W.3d 251, 2002 Ky. LEXIS 20 ( Ky. 2002 ).

Future medical benefits under workers’ compensation law were not duplicative of future medical expenses under a civil judgment until they were incurred and payable under workers’ compensation law; a third party’s claim for contribution from a workers’ compensation insurer under a subrogation agreement was dependent on the insurer’s obligation under workers’ compensation, and thus, the third party was not entitled to immediate reimbursement for the amount of the future medical expenses awarded to the injured worker under a civil judgment. Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 2002 Ky. App. LEXIS 2344 (Ky. Ct. App. 2002).

KRS 342.700(1) merely establishes a right of subrogation to an employer or its workers’ compensation carrier as the phrase “the other person in whom legal liability for damages exists” in KRS 342.700(1) quite clearly refers to the third-party tortfeasor who is liable at common law; thus, KRS 342.700(1) only prohibits a double recovery as between the employer and the tortfeasor. Samples v. Cincinnati Ins. Co., 2003 Ky. App. LEXIS 306 (Ky. Ct. App. Dec. 5, 2003), aff'd in part and rev'd in part, 192 S.W.3d 311, 2006 Ky. LEXIS 139 ( Ky. 2006 ).

When a carrier was denied a subrogation recovery under KRS 342.700(1) because the claimant’s legal fees exceeded the benefits paid by the carrier, this did not violate due process or Ky. Const. § 2. The plain language of the statute required such a result, since it was only fair to require employer/insurers benefiting from the fruits of a tort claim to share in its costs, even when a portion of the legal fees might be attributed to the recovery of damages such as pain and suffering that did not duplicate workers’ compensation benefits. AIK Selective Self-Insurance Fund v. Minton, 192 S.W.3d 415, 2006 Ky. LEXIS 130 ( Ky. 2006 ).

Administrative law judge had jurisdiction and a statutory mandate under KRS 342.325 and KRS 342.700 to review a settlement agreement reached between an employee and his employer to determine how much reimbursement, if any, was due the employer relative to a compensation subrogation lien. Greene v. Paschall Truck Lines, 239 S.W.3d 94, 2007 Ky. App. LEXIS 416 (Ky. Ct. App. 2007).

Workers’ compensation carrier’s statutory right of subrogation is confined solely to a tortfeasor, not an injured employee’s auto liability insurance carrier. Ky. Sch. Bd. Ass'n v. Jewell, 2008 Ky. App. LEXIS 49 (Ky. Ct. App.), sub. op., 2008 Ky. App. Unpub. LEXIS 881 (Ky. Ct. App. Mar. 7, 2008).

Because a workers’ compensation carrier was entitled to subrogate only against a third party tortfeasor, the rights an employee gained in her workers’ compensation settlement agreement did not include subrogation rights against her employer; the workers’ compensation carrier had no subrogation rights against the employer’s uninsured motorist carrier. Ky. Sch. Bd. Ass'n v. Jewell, 2008 Ky. App. LEXIS 49 (Ky. Ct. App.), sub. op., 2008 Ky. App. Unpub. LEXIS 881 (Ky. Ct. App. Mar. 7, 2008) (on other grounds).

Injured worker, as assignee of the workers’ compensation carrier’s subrogation rights, could not enforce those rights against the worker’s underinsured motorist (UIM) provider because the carrier had no right to recover from the UIM provider; further, KRS 342.700(1) precluded the worker from recovering from a negligent driver, or the worker’s UIM carrier standing in the negligent driver’s shoes, the same elements of damages for which the worker had already received workers’ compensation benefits. Jewell v. Ky. Sch. Bd. Ass'n, 309 S.W.3d 232, 2010 Ky. LEXIS 9 ( Ky. 2010 ).

City had a potential subrogation right against settlement proceeds, which would present a potential conflict of interest, but because the city failed to timely assert a subrogation claim, it waived that right, and the attorneys who represented city employees were not representing interests materially adverse to the city; the city’s potential subrogation right never ripened into an actual claim against the settlement proceeds, and the attorneys could assert lliens against the remaining proceeds. Louisville/Jefferson Cty. Metro Gov't v. Ackerson, 2020 Ky. App. LEXIS 46 (Ky. Ct. App. Apr. 24, 2020).

12. — Comparative Negligence.

Because the workers’ compensation claimant’s award against a third-party was limited due to comparative negligence, the workers’ compensation insurer was only allowed to recoup that percentage of the benefits it had paid and was liable for which was the same as the third party’s percentage of fault, less the recipient’s fees and expenses, under KRS 342.700(1). AIK Selective Self Ins. Fund v. Bush, 74 S.W.3d 251, 2002 Ky. LEXIS 20 ( Ky. 2002 ).

13. Legal Liability.

The parameters of “legal liability” under this section require only that the third-party tort-feasor “could have been compelled at law to pay” and the settlement itself is sufficient evidence of that fact. Mastin v. Liberal Markets, 674 S.W.2d 7, 1984 Ky. LEXIS 262 ( Ky. 1984 ).

14. Limitation on Employer's Liability.

KRS 342.690 and this section must be read as limiting the liability of the employer to the extent of his liability under the Workers’ Compensation Act but not as relieving a negligent employer of liability altogether; by giving effect to both this employer’s subrogation section, and the limited liability language in KRS 342.690 , the purposes of the compensation act are effected without foreclosing an unconscionable windfall for the employer. Burrell v. Electric Plant Bd., 676 S.W.2d 231, 1984 Ky. LEXIS 207 ( Ky. 1984 ), overruled, Dix & Assoc. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 1990 Ky. LEXIS 107 ( Ky. 1990 ).

Where employee sued third party for injuries due to negligence of third party, third party could claim contribution against employer who was concurrently negligent in causing employee’s injuries, which contribution would be limited to the amount of compensation and other benefits for which the employer was liable under the Workers' Compensation Act. Burrell v. Electric Plant Bd., 676 S.W.2d 231, 1984 Ky. LEXIS 207 ( Ky. 1984 ), overruled, Dix & Assoc. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 1990 Ky. LEXIS 107 ( Ky. 1990 ).

15. Settlement with Third Party.

Where employee recovered from third-party tort-feasor in products liability action even though employee erroneously believed that the settlement with third-party tort-feasor did not trigger the subrogation right provided in this section, and intended that the partial payment from third-party tort-feasor would be considered only as an advance payment pending determination of total damages and legal liability as to all defendants in the continuing common-law action, the employer, insurance carrier and special fund were entitled to immediate statutory subrogation as to such amount of her settlement as duplicate worker’s compensation benefits. Moreover, such restitution should be provided by a common-law judgment against employee for those amounts paid to her by the employer which duplicated elements included in her settlement with third-party tort-feasor. Mastin v. Liberal Markets, 674 S.W.2d 7, 1984 Ky. LEXIS 262 ( Ky. 1984 ).

Employer who was subrogated to payments received by employee from third party in products liability case was not foreclosed by allocation of items of damages entered into by employee and third party in a settlement agreement since employer was not a party to such agreement; rather employer was entitled to a fair and impartial decision as to the correct amount for each element of damages for which the employee sought recovery between those elements subject to statutory subrogation and those elements not so subject. Mastin v. Liberal Markets, 674 S.W.2d 7, 1984 Ky. LEXIS 262 ( Ky. 1984 ).

Ordinarily, the recoupment of compensation payments by an employer would come from the proceeds of any judgment against, or settlement with, the negligent third party; however, where the negligent third party agreed to indemnify the estate of the injured worker as to any recoupment of compensation benefits paid up to the date of settlement the judgment may properly go against the third party for recovery as to the extent of that party’s apportioned liability regarding the compensation paid by employer to the date of settlement. Dix & Assoc. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 1990 Ky. LEXIS 107 ( Ky. 1990 ).

16. Litigation Expenses.

In cases against third party by employee for negligence, where the employer is a willing participant in the litigation because he wishes to pursue his subrogation interest in his “own name or that of the injured employee,” and in cases where the injured employee elects to proceed at law by civil action against a third person and the employer is content to await the outcome of that case, the employer is liable for his proportionate share of the attorney’s fees and court costs that lead to the recoupment. Burrell v. Electric Plant Bd., 676 S.W.2d 231, 1984 Ky. LEXIS 207 ( Ky. 1984 ), overruled, Dix & Assoc. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 1990 Ky. LEXIS 107 ( Ky. 1990 ).

17. Attorney Fees.

Employer who was subrogated to payments that employee had received from tort-feasor in products liability case was entitled to credit not only against future payments to employee but also for amounts previously paid to employee; however, employer was not entitled to front-end credit for payment of the employee’s attorney’s fees. Mastin v. Liberal Markets, 674 S.W.2d 7, 1984 Ky. LEXIS 262 ( Ky. 1984 ).

Injured person was not entitled to deduct attorney’s fees from an offset claimed by her employer. The limit imposed by the last sentence of KRS 342.700(1) was a limit on the subrogation right of an entity that had paid workers’ compensation benefits and took no action to recoup what it had paid. Ky. Sch. Bd. Ass'n v. Jewell, 2008 Ky. App. LEXIS 49 (Ky. Ct. App.), sub. op., 2008 Ky. App. Unpub. LEXIS 881 (Ky. Ct. App. Mar. 7, 2008).

18. Statute of Limitations.

Action by workers’ compensation insurers (or self-insured employers) to recover from third party tort-feasors the amount that the insurer/self-insured employer had paid in compensation begins to run upon such actions at the same time that the statute of limitations would have begun to run on the injured employee’s action or that of the employee’s personal representative, against a third party tort-feasor. Waters v. Transit Authority of River City, 799 S.W.2d 56, 1990 Ky. App. LEXIS 107 (Ky. Ct. App. 1990).

This section does not create a new cause of action against third parties in whom legal liability for damages exists in favor of the employer/insurance carrier and therefore liability hereunder is not an obligation created by statute, subject to the five-year statute of limitations of KRS 413.120(2). Waters v. Transit Authority of River City, 799 S.W.2d 56, 1990 Ky. App. LEXIS 107 (Ky. Ct. App. 1990).

With regard to an action by employer to recover amount of workers’ compensation benefits from third party tort-feasors who were allegedly responsible for employee’s injury in a motor vehicle accident, there may be obvious inconsistencies and litigation problems that would be created if the Motor Vehicle Reparation Act was interpreted as carving out different statutes of limitations in a claim against motorists when a claim is asserted against a motorist by a motorist or by someone standing in the derivative position of an injured motorist; to hold otherwise would expose the alleged tort-feasor to liability to a subrogated party for a great number of years, even though he could be held liable for only a shorter term to the party actually injured; thus the limitations period under such circumstances is controlled by KRS 304.39-230 (6). Waters v. Transit Authority of River City, 799 S.W.2d 56, 1990 Ky. App. LEXIS 107 (Ky. Ct. App. 1990).

19. Fellow Employee.

A fellow employee did not qualify as “some other person” under law which gave injured employee the right to proceed against “some other person” legally liable. Jackson v. Hutchinson, 453 S.W.2d 269, 1970 Ky. LEXIS 302 ( Ky. 1970 ) (decided under prior law).

Fellow employee was immune from suit brought by employees against him for damages arising out of automobile collision on a parking lot maintained by employer exclusively for the benefit of its employees, since each of the employees involved would have been entitled to workers’ compensation benefits for any disabling injury suffered in the accident. Jackson v. Hutchinson, 453 S.W.2d 269, 1970 Ky. LEXIS 302 ( Ky. 1970 ) (decided under prior law).

Where the employee was injured during his employment while doing a personal job for a company officer, in a suit against the officer as an individual the officer was not entitled to summary judgment since a genuine issue would exist as to whether he was acting as employer or private individual. Wallace v. Wathen, 476 S.W.2d 829, 1972 Ky. LEXIS 395 ( Ky. 1972 ) (decided under prior law).

Because a material issue of fact existed as to whether teacher’s conduct in approaching co-worker from behind and intentionally placing her knee to the back of co-worker’s knee, causing co-worker to fall, constituted a willful and unprovoked act of aggression thereby falling outside of the immunity of KRS 342.690 , co-worker was able to proceed with her common-law action against teacher under subsection (1) of this section; summary judgment in favor of teacher reversed. To prevent double recovery, school board would be allowed to recoup from any award sums it paid to co-worker in workers’ compensation benefits; school board would not be entitled to recoupment for items other than lost wages and medical expenses, e.g., pain and suffering. Russell v. Able, 931 S.W.2d 460, 1996 Ky. App. LEXIS 132 (Ky. Ct. App. 1996) (decided under prior law).

20. Uninsured Motorist.

Clause in automobile liability policy providing that uninsured motorist coverage would not apply so as to inure directly or indirectly to the benefit of any workers’ compensation carrier is valid because the compensation carrier’s right of subrogation against the third party tortfeasor remains intact. State Farm Mut. Ins. Co. v. Fireman's Fund American Ins. Co., 550 S.W.2d 554, 1977 Ky. LEXIS 446 ( Ky. 1977 ) (decided under prior law).

The liability of the uninsured motorist is not extinguished by the satisfaction of an injured party’s claim by his own insurance company under its uninsured motorist coverage; his liability may be enforced by both the carrier which has paid workers’ compensation benefits and the carrier which has paid under the uninsured motorist coverage, but, as between the two, the compensation carrier has priority. State Farm Mut. Ins. Co. v. Fireman's Fund American Ins. Co., 550 S.W.2d 554, 1977 Ky. LEXIS 446 ( Ky. 1977 ) (decided under prior law).

21. Underinsured Motorist.

Employer had no subrogation rights against underinsured motorist benefits paid to an injured employee for workers’ compensation benefits paid to the employee as a result of the same auto accident; KRS 342.700 (1) allowed subrogation against the third-party tortfeasor, but a payment made in performance of a contractual obligation was not a payment of “damages” and the liability of an insurance company under its uninsured motorist coverage was not the “legal liability for damages” mentioned in KRS 342.700 . While the UIM carriers may have stood in the shoes of the tortfeasor for the sole purpose of making the injured party whole, the UIM contracts did not provide an additional right of subrogation in favor of the employer. G&J Pepsi-Cola Bottlers v. Fletcher, 229 S.W.3d 915, 2007 Ky. App. LEXIS 220 (Ky. Ct. App. 2007).

22. Contractor.

Contract for excavation which provided that contractor would indemnify and hold building owner harmless from any liability or damages occurring during the course of the excavation requires contractor to indemnify owner even from its own ordinary negligence. Reynolds Metals Co. v. J. U. Schickli & Bros., Inc., 548 S.W.2d 841, 1977 Ky. LEXIS 405 ( Ky. 1977 ) (decided under prior law).

In an injured worker’s personal injury suit against a subcontractor, the contractor-premises owner was entitled to summary judgment as no formal written contract between the injured worker’s direct employer and the contractor was essential to establish up-the-ladder immunity under KRS 342.690(1) against the worker’s tort claims. Beaver v. Oakley, 279 S.W.3d 527, 2009 Ky. LEXIS 74 ( Ky. 2009 ).

Cited:

State Farm Mut. Auto. Ins. Co. v. Roark, 517 S.W.2d 737, 1974 Ky. LEXIS 34 ( Ky. 1974 ); United States Fidelity & Guaranty Co. v. Smith, 580 S.W.2d 216, 1979 Ky. LEXIS 244 ( Ky. 1979 ); Black v. American Mut. Ins. Co., 503 F. Supp. 172, 1980 U.S. Dist. LEXIS 15169 (E.D. Ky. 1980 ); Harris Corp., Data Communications Div. v. Comair, Inc., 510 F. Supp. 1168, 1981 U.S. Dist. LEXIS 11561 (E.D. Ky. 1981 ); Fireman’s Fund Ins. Co. v. Government Emples. Ins. Co., 635 S.W.2d 475, 1982 Ky. LEXIS 270 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ), overruled in part, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ); Capps v. Herman Schwabe, Inc., 628 F. Supp. 1353, 1986 U.S. Dist. LEXIS 29917 (W.D. Ky. 1986 ); Zurich Am. Ins. Co. v. Haile, 882 S.W.2d 681, 1994 Ky. LEXIS 89 ( Ky. 1994 ); Brewer v. Hillard, 15 S.W.3d 1, 1999 Ky. App. LEXIS 93 (Ky. Ct. App. 1999); Oakley v. Crawford Elec., Inc., — S.W.3d —, 2006 Ky. App. LEXIS 303 (Ky. Ct. App. 2006).

Research References and Practice Aids

Kentucky Bench & Bar.

Cooper, The “Comp” Factor in Tort Cases, 51 Ky. Bench & B. 14 (1987).

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

Schabell, 1994 Workers’ Compensation Changes — A Plaintiff’s Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 17.

Jones, A Defense Perspective of the Kentucky Workers’ Compensation Reform Legislation (House Bill 928), Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 20.

Fogle, Workplace Injuries: Exclusive Remedy in the New Millennium, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 31.

Kentucky Law Journal.

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Rogers, Apportionment in Kentucky After Comparative Negligence, 75 Ky. L.J. 103 (1986-87).

Note, Apportioning Liability to Nonparties in Kentucky Tort Actions: A Natural Extension of Comparative Fault or a Phantom Scapegoat for Negligent Defendants? 82 Ky. L.J. 789 (1993-94).

ALR

Right to maintain action against fellow employee for injury or death covered by workmen’s compensation. 21 A.L.R.3d 845, 57 A.L.R.4th 888.

Right to maintain malpractice suit against injured employee’s attending physician notwithstanding receipt of workmen’s compensation award. 28 A.L.R.3d 1066.

Validity and construction of liability policy provision requiring insured to reimburse insurer for payments made under policy. 29 A.L.R.3d 291.

Insured’s receipt of or right to workmen’s compensation benefits as affecting recovery under accident, hospital, or medical expense policy. 40 A.L.R.3d 1012.

Homeowners’ or personal liability insurance as providing coverage for liability under workmen’s compensation laws. 41 A.L.R.3d 1306.

Effect of injured employee’s proceeding for workmen’s compensation benefits on running of statute of limitations governing action for personal injury arising from same incident. 71 A.L.R.3d 849.

When does statute of limitations begin to run upon an action by subrogated insurer against third-party tortfeasor. 91 A.L.R.3d 844.

Modern status of effect of state Workmen’s Compensation Act on right of third-person tortfeasor to contribution or indemnity from employer of injured or killed workman. 100 A.L.R.3d 350 (decided under prior law).

Validity and construction of no-fault insurance plans providing for reduction of benefits otherwise payable by amounts receivable from independent collateral sources. 10 A.L.R.4th 996.

Third party tortfeasor’s right to have damages recovered by employee reduced by amount of employee’s worker’s compensation benefits. 43 A.L.R.4th 849.

Willful, wanton, or reckless conduct of coemployee as ground of liability despite bar of workers’ compensation law. 57 A.L.R.4th 888.

Uninsured and underinsured motorist coverage: Validity, construction, and effect of policy provision purporting to reduce coverage by amount paid or payable under workers’ compensation law. 31 A.L.R.5th 116.

342.710. Rehabilitation rights, duties, and procedures — Acceleration of benefits.

  1. One of the primary purposes of this chapter shall be restoration of the injured employee to gainful employment, and preference shall be given to returning the employee to employment with the same employer or to the same or similar employment.
  2. The commissioner shall continuously study the problems of rehabilitation, both physical and vocational, and shall investigate and maintain a directory of all rehabilitation facilities, both private and public.
  3. An employee who has suffered an injury covered by this chapter shall be entitled to prompt medical rehabilitation services for whatever period of time is necessary to accomplish physical rehabilitation goals which are feasible, practical, and justifiable. When as a result of the injury he or she is unable to perform work for which he or she has previous training or experience, he or she shall be entitled to such vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore him or her to suitable employment. In all such instances, the administrative law judge shall inquire whether such services have been voluntarily offered and accepted. The administrative law judge on his or her own motion, or upon application of any party or carrier, after affording the parties an opportunity to be heard, may refer the employee to a qualified physician or facility for evaluation of the practicability of, need for, and kind of service, treatment, or training necessary and appropriate to render him or her fit for a remunerative occupation. Upon receipt of such report, the administrative law judge may order that the services and treatment recommended in the report, or such other rehabilitation treatment or service likely to return the employee to suitable, gainful employment, be provided at the expense of the employer or its insurance carrier. Vocational rehabilitation training, treatment, or service shall not extend for a period of more than fifty-two (52) weeks, except in unusual cases when by special order of the administrative law judge, after hearing and upon a finding, determined by sound medical evidence which indicates such further rehabilitation is feasible, practical, and justifiable, the period may be extended for additional periods.
  4. Where rehabilitation requires residence at or near the facility or institution, away from the employee’s customary residence, reasonable cost of his or her board, lodging, or travel shall be paid for by the employer or its insurance carrier.
  5. Refusal to accept rehabilitation pursuant to an order of an administrative law judge shall result in a fifty percent (50%) loss of compensation for each week of the period of refusal.
  6. The commissioner shall cooperate on a reciprocal basis with the Office of Vocational Rehabilitation and the Department of Workforce Investment of the Education and Workforce Development Cabinet. In the event medical treatment, medical rehabilitation services, or vocational rehabilitation services are purchased for an injured employee by the Office of Vocational Rehabilitation or Department of Workforce Investment following the refusal by the employer or its insurance carrier to provide such services, the administrative law judge, after affording the parties an opportunity to be heard, may order reimbursement of the cost of such treatment or services by the employer or its insurance carrier as apportioned in the award. This section shall not be interpreted to require mandatory evaluation of employees based on length of disability. Any administrative regulations promulgated pursuant to this section that require mandatory referral to a qualified rehabilitation counselor shall expire on April 4, 1994.
  7. An employee who is enrolled and participating in a program of rehabilitation training pursuant to this section may elect to receive an acceleration of benefits as awarded under KRS 342.730 . Such acceleration shall be available to the employee during the period of retraining, but in no event shall be paid in a weekly amount greater than sixty-six and two-thirds percent (66-2/3%) of the average weekly wage upon which the award is based, not to exceed one hundred percent (100%) of the state average weekly wage. Upon successful completion of the rehabilitation program, the total of all accelerated benefits paid shall be deducted on a dollar-for-dollar basis, without discount, from weekly benefits otherwise due the employee subject to the maximum amount of the award. Such remaining benefits, if any, shall then be divided by the number of weeks remaining payable under the award, and that amount shall be the weekly benefit due the employee. If a program of rehabilitation training is terminated by the employee prior to completion, all sums paid on an accelerated basis shall be discounted at the rate set forth in KRS 342.265 and then deducted on a dollar-for-dollar basis from weekly benefits otherwise due the employee subject to the maximum amount of the award. Such remaining benefits, after the discount, shall be divided by the number of weeks remaining payable under the award, and that amount shall be the weekly benefit due the employee. In no event shall this subsection be construed as requiring payment of benefits in excess of the total of those benefits which would otherwise be payable under the award.

History. Enact. Acts 1972, ch. 78, § 11; 1974, ch. 74, Art. VI, § 107(14); 1980, ch. 104, § 14, effective July 15, 1980; 1982, ch. 426, § 3, effective July 15, 1982; 1984, ch. 250, § 1, effective July 13, 1984; 1987 (Ex. Sess.), ch. 1, § 54, effective October 26, 1987; 1990, ch. 18, § 1, effective July 13, 1990; 1990, ch. 355, § 1, effective July 13, 1990; 1994, ch. 181, Part 5, § 22, effective April 4, 1994; 1996, ch. 271, § 26, effective July 15, 1996; 1996 (1st Ex. Sess.), ch. 1, § 66, effective December 12, 1996; 2000, ch. 514, § 28, effective July 14, 2000; 2006, ch. 211, § 159, effective July 12, 2006; 2009, ch. 11, § 82, effective June 25, 2009; 2010, ch. 24, § 1840, effective July 15, 2010; 2019 ch. 146, § 72, effective June 27, 2019.

NOTES TO DECISIONS

Analysis

  1. Purpose.
  2. Provision Mandatory.
  3. Award of Benefits.
  4. Suitable Employment.
  5. Discretion of Administrative Law Judge.
1. Purpose.

The purpose of the statutory scheme for calculating permanent partial disability benefits in KRS 342.730(1)(c) is similar to the purposes for the provisions relating to rehabilitation benefits in this section; the shared purpose of both sections is to motivate workers to return to work and to encourage employers to retain injured workers at wages equal to or greater than those earned before the injury, and the employer’s beliefs about its employee’s post-injury physical capabilities do not constitute the litmus test for determining the employee’s rights to benefits under either statutory provision. Carte v. Loretto Motherhouse Infirmary, 19 S.W.3d 122, 2000 Ky. App. LEXIS 54 (Ky. Ct. App. 2000).

2. Provision Mandatory.

The invocation of the rehabilitation provisions of Workers’ Compensation Act are mandatory when so requested by the injured employee; because if the employe “is unable to perform work for which he has previous training or experience” as a result of a work related accident, he is entitled to vocational rehabilitation services. Edwards v. Bluegrass Containers Div. of Dura Containers, Inc., 594 S.W.2d 900, 1980 Ky. App. LEXIS 296 (Ky. Ct. App. 1980).

3. Award of Benefits.

An award of vocational rehabilitation benefits does not require a concomitant award of temporary total disability (TTD) until rehabilitation is complete. Epling v. Four B & C Coal Co., 858 S.W.2d 216, 1993 Ky. App. LEXIS 100 (Ky. Ct. App. 1993).

Because the training facility at which the claimant participated in a vocational rehabilitation program was ninety-seven (97) miles from his customary residence, the payment of mileage came within the travel expenses contemplated by subsection (4). Pinkston v. Teletronics, Inc., 4 S.W.3d 130, 1999 Ky. LEXIS 115 ( Ky. 1999 ).

Considering the claimant’s age and his occupational and educational background, the medical evidence offered in the initial claim was sufficient to support the administrative law judge’s determination that the twenty-two (22) month vocational rehabilitation program in which he participated was compensable. Pinkston v. Teletronics, Inc., 4 S.W.3d 130, 1999 Ky. LEXIS 115 ( Ky. 1999 ).

Nothing in the statute provides that benefits are forfeited unless approval is obtained before enrollment in a vocational rehabilitation program of more than fifty-two (52) weeks’ duration. Pinkston v. Teletronics, Inc., 4 S.W.3d 130, 1999 Ky. LEXIS 115 ( Ky. 1999 ).

4. Suitable Employment.

An employee who has suffered a compensable disabling injury, barring a reasonable basis to deny rehabilitation, is entitled to have the ability to perform suitable work restored through an appropriate rehabilitation plan. Wilson v. SKW Alloys, 893 S.W.2d 800, 1995 Ky. App. LEXIS 34 (Ky. Ct. App. 1995).

“Work for which an [employee] has previous training or experience” must be suitable employment. Suitable employment means work which bears a reasonable relationship to an individual’s experience and background, taking into consideration the type of work the person was doing at the time of injury, his age and education, his income level and earning capacity, his vocational aptitude, his mental and physical abilities and other relevant factors both at the time of injury and after reaching his post-injury maximum level of medical improvement. Wilson v. SKW Alloys, 893 S.W.2d 800, 1995 Ky. App. LEXIS 34 (Ky. Ct. App. 1995).

5. Discretion of Administrative Law Judge.

Workers’ Compensation Board exceeded its authority when it reversed a decision of the chief administrative law judge (CALJ) and on remand, directed the CALJ to consider vocational rehabilitation for the claimant she had found totally and permanently disabled; under KRS 342.710(3), consideration of vocational rehabilitation was within the discretion of the CALJ and the effect of the Board’s direction on remand was to second-guess the CALJ’s exercise of that discretion. Carnes v. Parton Bros. Contr., Inc., 171 S.W.3d 60, 2005 Ky. App. LEXIS 183 (Ky. Ct. App. 2005).

Since the administrative law judge (ALJ) reasonably found that a claimant’s physical condition did not prevent him from engaging in a retraining program, that retraining was practical, and that it would likely return him to employment, pursuant to KRS 342.710 , the ALJ properly referred him again to receive the services that had been recommended. Neighbors v. River City Interiors, 187 S.W.3d 319, 2006 Ky. LEXIS 67 ( Ky. 2006 ).

Cited:

Reo Mechanical v. Barnes, 691 S.W.2d 224, 1985 Ky. App. LEXIS 527 (Ky. Ct. App. 1985); Commonwealth v. Workers’ Compensation Bd., 697 S.W.2d 540, 1985 Ky. App. LEXIS 652 (Ky. Ct. App. 1985); McCoy Elkhorn Coal Corp. v. Sullivan, 862 S.W.2d 891, 1993 Ky. LEXIS 134 ( Ky. 1993 ); Derr Constr. Co. v. Bennett, 873 S.W.2d 824, 1994 Ky. LEXIS 45 ( Ky. 1994 ); Breeding v. Colonial Coal Co., 975 S.W.2d 914, 1998 Ky. LEXIS 104 ( Ky. 1998 ).

Notes to Unpublished Decisions

1. Award of Benefits.

Unpublished decision: Where a former employee received a workers’ compensation award for temporary total disability based on the employee’s inability to perform the employee’s past work, and a jury subsequently awarded the employee damages for lost wages for retaliatory discharge, the employer was only entitled to a credit against the damage award for the period the employee could not work at all, and the evidence showed that the employee could have performed some other work for the employer after that time. Bullard v. Alcan Aluminum Corp., 113 Fed. Appx. 684, 2004 U.S. App. LEXIS 23015 (6th Cir. Ky. 2004 ), cert. denied, 545 U.S. 1105, 125 S. Ct. 2553, 162 L. Ed. 2d 276, 2005 U.S. LEXIS 4536 (U.S. 2005).

Research References and Practice Aids

Kentucky Bench & Bar.

Ferreri, Workers’ Compensation: Rehabilitation and the Judicial Dichotomy, Vol. 50, No. 1, Winter 1985-86 Ky. Bench & B. 24.

Hendy, Payment of Medical Benefits for the Injured Worker: Is the Current System in Need of Refinement?, Vol. 56, No. 4, Fall 1992, Ky. Bench & Bar 28.

Jones, Occupational Disease — Six Years Later, Vol. 58, No. 1, Winter 1944, Ky. Bench & Bar 7.

Jones, A Defense Perspective of the Kentucky Workers’ Compensation Reform Legislation (House Bill 928), Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 20.

Kentucky Law Journal.

Kentucky Law Survey: Cassis, Workers’ Compensation, 66 Ky. L.J. 509 (1977-78).

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Northern Kentucky Law Review.

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

342.715. Calculation of benefits during participation in vocational or physical rehabilitation program.

Notwithstanding the provisions of KRS 342.730 , during the period the employee is eligible for permanent total disability benefits and is actively participating in a vocational or physical rehabilitation program, pursuant to an order of the administrative law judge, the employee’s benefits shall be calculated by taking eighty percent (80%) of his average weekly wage, but not more than one hundred percent (100%) of the state’s average weekly wage, times the permanent disability rating as determined in this chapter.

History. Enact. Acts 1980, ch. 104, § 19, effective July 15, 1980; 1987 (Ex. Sess.), ch. 1, § 62, effective January 4, 1988; 1996 (1st Ex. Sess.), ch. 1, § 29, effective December 12, 1996; 2000, ch. 514, § 29, effective July 14, 2000.

NOTES TO DECISIONS

  1. In General.
  2. Amount of Benefit.
1. In General.

The statute authorizes enhanced income benefits only where the injured worker “is eligible for permanent total disability benefits”; use of the word “eligible” connotes a present entitlement to benefits for permanent total disability. Pinkston v. Teletronics, Inc., 4 S.W.3d 130, 1999 Ky. LEXIS 115 ( Ky. 1999 ).

The conditions for awarding the benefit are unambiguous, and the formula for computing the benefit is compatible with those conditions. Pinkston v. Teletronics, Inc., 4 S.W.3d 130, 1999 Ky. LEXIS 115 ( Ky. 1999 ).

The statute does not apply to a claimant who is not permanently and totally disabled. Pinkston v. Teletronics, Inc., 4 S.W.3d 130, 1999 Ky. LEXIS 115 ( Ky. 1999 ).

2. Amount of Benefit.

The amount of the benefit under the statute equals eighty percent (80%) of the worker’s average weekly wage (limited by the state’s average weekly wage), multiplied by the percentage of disability as determined in KRS Chapter 342. Pinkston v. Teletronics, Inc., 4 S.W.3d 130, 1999 Ky. LEXIS 115 ( Ky. 1999 ).

Cited:

McCoy Elkhorn Coal Corp. v. Sullivan, 862 S.W.2d 891, 1993 Ky. LEXIS 134 ( Ky. 1993 ); Breeding v. Colonial Coal Co., 975 S.W.2d 914, 1998 Ky. LEXIS 104 ( Ky. 1998 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Jones, Occupational Disease — Six Years Later, Vol. 58, No. 1, Winter 1944, Ky. Bench & Bar 7.

342.720. Burial expense. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 78, § 12; 1982, ch. 278, § 22, effective July 15, 1982; 1990, ch. 287, § 1, effective July 13, 1990; 1994, ch. 181, Part 15, § 95, effective April 4, 1994) was repealed by § 83 of Acts 1996 (1st Ex. Sess.), ch. 1, effective December 12, 1996. For present law see KRS 342.750(6).

342.730. Determination of income benefits for disability — Survivors’ rights — Termination — Offsets — Notification of return to work — Professional athletes.

  1. Except as provided in KRS 342.732 , income benefits for disability shall be paid to the employee as follows:
    1. For temporary or permanent total disability, sixty-six and two-thirds percent (66-2/3%) of the employee’s average weekly wage but not more than one hundred ten percent (110%) of the state average weekly wage and not less than twenty percent (20%) of the state average weekly wage as determined in KRS 342.740 during that disability. Nonwork-related impairment and conditions compensable under KRS 342.732 and hearing loss covered in KRS 342.7305 shall not be considered in determining whether the employee is totally disabled for purposes of this subsection.
    2. For permanent partial disability, sixty-six and two-thirds percent (66-2/3%) of the employee’s average weekly wage but not more than eighty-two and one-half percent (82.5%) of the state average weekly wage as determined by KRS 342.740 , multiplied by the permanent impairment rating caused by the injury or occupational disease as determined by the “Guides to the Evaluation of Permanent Impairment,” times the factor set forth in the table that follows:
      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 (c) 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 Equivalency 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).
      4. Notwithstanding the provisions of KRS 342.125 , a claim may be reopened at any time during the period of permanent partial disability in order to conform the award payments with the requirements of subparagraph 2. of this paragraph.
    3. 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 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 eighty-two and one-half percent (82.5%) of the state average weekly wage, except for benefits payable pursuant to paragraph (c)1. of this subsection, which shall not exceed one hundred ten percent (110%) 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.
    4. For permanent partial disability, impairment for nonwork-related disabilities, conditions previously compensated under this chapter, conditions covered by KRS 342.732, and hearing loss covered in KRS 342.7305 shall not be considered in determining the extent of disability or duration of benefits under this chapter.
  2. The period of any income benefits payable under this section on account of any injury shall be reduced by the period of income benefits paid or payable under this chapter on account of a prior injury if income benefits in both cases are for disability of the same member or function, or different parts of the same member or function, and the income benefits payable on account of the subsequent disability in whole or in part would duplicate the income benefits payable on account of the pre-existing disability.
  3. Subject to the limitations contained in subsection (4) of this section, when an employee, who has sustained disability compensable under this chapter, and who has filed, or could have timely filed, a valid claim in his or her lifetime, dies from causes other than the injury before the expiration of the compensable period specified, portions of the income benefits specified and unpaid at the individual’s death, whether or not accrued or due at his or her death, shall be paid, under an award made before or after the death, for the period specified in this section, to and for the benefit of the persons within the classes at the time of death and in the proportions and upon the conditions specified in this section and in the order named:
    1. To the widow or widower, if there is no child under the age of eighteen (18) or incapable of self-support, benefits at fifty percent (50%) of the rate specified in the award; or
    2. If there are both a widow or widower and such a child or children, to the widow or widower, forty-five percent (45%) of the benefits specified in the award, or forty percent (40%) of those benefits if such a child or children are not living with the widow or widower; and, in addition thereto, fifteen percent (15%) of the benefits specified in the award to each child. Where there are more than two (2) such children, the indemnity benefits payable on account of two (2) children shall be divided among all the children, share and share alike; or
    3. If there is no widow or widower but such a child or children, then to the child or children, fifty percent (50%) of the benefits specified in the award to one (1) child, and fifteen percent (15%) of those benefits to a second child, to be shared equally. If there are more than two (2) such children, the indemnity benefits payable on account of two (2) children shall be divided equally among all the children; or
    4. If there is no survivor in the above classes, then the parent or parents wholly or partly actually dependent for support upon the decedent, or to other wholly or partly actually dependent relatives listed in paragraph (g) of subsection (1) of KRS 342.750 , or to both, in proportions that the commissioner provides by administrative regulation.
    5. To the widow or widower upon remarriage, up to two (2) years, benefits as specified in the award and proportioned under paragraphs (a) or (b) of this subsection, if the proportioned benefits remain unpaid, to be paid in a lump sum.
  4. All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee reaches the age of seventy (70), or four (4) years after the employee’s injury or last exposure, whichever last occurs. In like manner all income benefits payable pursuant to this chapter to spouses and dependents shall terminate as of the date upon which the employee would have reached age seventy (70) or four (4) years after the employee’s date of injury or date of last exposure, whichever last occurs.
  5. All income benefits pursuant to this chapter otherwise payable for temporary total and permanent total disability shall be offset by unemployment insurance benefits paid for unemployment during the period of temporary total or permanent total disability.
  6. All income benefits otherwise payable pursuant to this chapter shall be offset by payments made under an exclusively employer-funded disability plan, exclusively employer-funded disability retirement plan, exclusively employer-funded sickness and accident plan, or salary continuation, which extends income benefits for the same disability covered by this chapter, except where the employer-funded plan contains an internal offset provision for workers’ compensation benefits which is inconsistent with this provision.
  7. Income benefits otherwise payable pursuant to this chapter for temporary total disability during the period the employee has returned to a light-duty or other alternative job position shall be offset by an amount equal to the employee’s gross income minus applicable taxes during the period of light-duty work or work in an alternative job position.
  8. If an employee receiving a permanent total disability award returns to work, that employee shall notify the employer, payment obligor, insurance carrier, or special fund as applicable.
  9. Income benefits otherwise payable pursuant to this chapter for temporary total disability to a professional athlete under the direction and control of an employer that is a professional team located in Kentucky, absent any collective bargaining agreement, shall terminate no later than the date on which the contract for hire upon which the employment is based expires, so long as the professional athlete has been released to return to employment for which he or she has prior training or experience.

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

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Any temporary total disability period within the maximum period for permanent, partial disability benefits shall extend the maximum period but shall not make payable a weekly benefit exceeding that determined in subsection (1)(a) of this section. Notwithstanding any section of this chapter to the contrary, there shall be no minimum weekly income benefit for permanent partial disability and medical benefits shall be paid for the duration of the disability.

HISTORY: Enact. Acts 1972, ch. 78, § 14; 1974, ch. 386, § 63; 1976, ch. 160, § 9; 1976 (Ex. Sess.), ch. 26, § 1, effective January 1, 1977; 1978, ch. 256, § 4, effective June 17, 1978; 1980, ch. 104, § 15, effective July 15, 1980; 1982, ch. 278, § 23, effective July 15, 1982; 1987 (Ex. Sess.), ch. 1, § 55, effective October 26, 1987; 1990, ch. 17, § 1, effective July 13, 1990; 1990, ch. 99, § 3, effective July 13, 1990; 1994, ch. 181, Part 7, § 25, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 30, effective December 12, 1996; 2000, ch. 514, § 30, effective July 14, 2000; 2010, ch. 24, § 1841, effective July 15, 2010; 2010, ch. 90, § 5, effective July 15, 2010; 2017 ch. 63, § 34, effective June 29, 2017; 2018 ch. 40, § 13, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). This statute was amended in Section 13 of 2018 Ky. Acts ch. 40. Subsection (2) of Section 20 of that Act reads, “Sections 2, 4, and 5 and subsection (7) of Section 13 of this Act are remedial and shall apply to all claims irrespective of the date of injury or last exposure, provided that, as applied to any fully and finally adjudicated claim, the amount of indemnity ordered or awarded shall not be reduced and the duration of medical benefits shall not be limited in any way.” Subsection (3) of Section 20 of that Act reads, “Subsection (4) of Section 13 of this Act shall apply prospectively and retroactively to all claims: (a) For which the date of injury or date of last exposure occurred on or after December 12, 1996; and (b) That have not been fully and finally adjudicated, or are in the appellate process, or for which time to file an appeal has not lapsed, as of the effective date of this Act.”

NOTES TO DECISIONS

Analysis

  1. Constitutionality.
  2. Purpose.
  3. Construction With Other Laws.
  4. Application.
  5. — 1994 Amendments.
  6. — 1990 Amendment.
  7. Injury.
  8. — Degree.
  9. —Member.
  10. — — Leg.
  11. — — Foot.
  12. — —Hearing Loss.
  13. — — Hand.
  14. — — Loss of Eye.
  15. — — Loss of Vision.
  16. — To Body as a Whole.
  17. — Multiple Injuries.
  18. — Loss of Skill.
  19. — Preexisting Injury.
  20. —Evidence.
  21. Disabilities.
  22. — Occupational.
  23. —Permanent Partial Disability.
  24. —Total.
  25. — — Definition.
  26. — — Presumptions.
  27. — — For Manual Labor.
  28. — — Denial.
  29. — Combination.
  30. Disease.
  31. — Preexisting.
  32. — Evidence.
  33. Benefits.
  34. —Required.
  35. — Proper Request.
  36. — Prevailing Conditions.
  37. —Functional Impairment Rating.
  38. —Earning Capacity.
  39. — —Effect on Future.
  40. —Earnings After Accident or Disease.
  41. — — Ability to Do Light Work in Another Occupation.
  42. —Calculation.
  43. — — Life Expectancy.
  44. — Schedule.
  45. —“Tier-down” Reductions.
  46. — — Remand.
  47. — Limitations.
  48. — Commutation of Future Benefits.
  49. — Retraining Benefits.
  50. — Retroactive.
  51. —Credit to Employer.
  52. —Denial of Benefits.
  53. — — Refusal of Job Offer.
  54. Award.
  55. —Correction.
  56. — Apportionment.
  57. — Duration.
  58. — Reduction of Award.
  59. — Reopening of Award.
  60. Reduction of Employer's Liability.
  61. — Total After Partial Disability.
  62. — Partial After Total Disability.
  63. — Deduction for Previous Award.
  64. — Failure to Follow Medical Advice.
  65. — Paid by Other Employees.
  66. Death of Claimant.
  67. — Prior to Compensation.
  68. — Retraining Benefit.
  69. Dependency.
  70. Marriage Following Award of Benefits.
  71. Widow.
  72. AMA Guidelines.
  73. Medical Testimony.
  74. Preservation for Review.
1. Constitutionality.

The interpretation of KRS 342.740 and this section, prior to the 1976 amendment of the latter, to allow minimum weekly benefits for permanent, partial disability was not unconstitutional. Yocum v. Gantley, 566 S.W.2d 176, 1978 Ky. App. LEXIS 517 (Ky. Ct. App. 1978).

This section’s gradual reduction of worker’s compensation benefits after age sixty-five (65) for injuries occurring prior to the worker’s 65th birthday does not constitute age discrimination in violation of the equal protection and due process clauses of the State Constitution because the reduction rationally relates to the legitimate objective of avoiding duplicate government benefits. Edwards v. Louisville Ladder, 957 S.W.2d 290, 1997 Ky. App. LEXIS 96 (Ky. Ct. App. 1997).

The “tier-down” provisions of subsection (4) are rationally related to legitimate state purposes and therefore not violative of due process or equal protection, because they help the state avoid the duplication of income benefits and the incentivization of disability and reduce the overall cost of the health care system. Wynn v. Ibold, Inc., 969 S.W.2d 695, 1998 Ky. LEXIS 92 ( Ky. 1998 ).

To the extent the statute can be construed as requiring an off-set of a claimant’s workers’ compensation benefits on a dollar-for-dollar basis with the social security retirement benefits she actually receives, it is constitutional. McDowell v. Jackson Energy RECC, 2000 Ky. App. LEXIS 20 (Ky. Ct. App. Feb. 25, 2000), aff'd, in part, rev'd, 84 S.W.3d 71, 2002 Ky. LEXIS 164 ( Ky. 2002 ).

As the statute was applied by the administrative law judge (ALJ), it violated the claimant’s equal protection and due process guarantees; the ALJ apparently interpreted the phrase “the date upon which the employee qualifies for normal old-age Social Security retirement benefits” to cause automatic termination of an employee’s benefits on her 65th birthday, but that interpretation failed to support a rational basis for the specific statute at issue, that is, to prevent “double-dipping,” and undermined the objective of the entire workers’ compensation scheme to maintain a stream of income to disabled workers and their dependents. McDowell v. Jackson Energy RECC, 2000 Ky. App. LEXIS 20 (Ky. Ct. App. Feb. 25, 2000), aff'd, in part, rev'd, 84 S.W.3d 71, 2002 Ky. LEXIS 164 ( Ky. 2002 ).

Because the claimant consented to the provisions of the workers’ compensation statutes and did not reject them, his rights under the Kentucky Constitution were not violated by subsection (1), notwithstanding his assertion that by requiring the fact finder to use a numerical formula to determine the occupational disability of an injured party, a fact finder is not able to take into account such important factors as the injured workers’ lack of education or job skills or the difficulty he will face in trying to obtain a new employment position due to these factors. Adkins v. R & S Body Co., 2000 Ky. App. LEXIS 90 (Ky. Ct. App. Aug. 18, 2000), aff'd, 58 S.W.3d 428, 2001 Ky. LEXIS 179 ( Ky. 2001 ).

The provisions of subsection (1) do not violate the separation of powers doctrine as the statute determines how income benefits are to be determined and does not relate to the admissibility of evidence. Adkins v. R & S Body Co., 2000 Ky. App. LEXIS 90 (Ky. Ct. App. Aug. 18, 2000), aff'd, 58 S.W.3d 428, 2001 Ky. LEXIS 179 ( Ky. 2001 ).

2. Purpose.

Apart from compensation for particular injuries, compensation to employees is awarded solely for incapacity, not for injury as such. Wright v. Cane Run Petroleum Co., 262 Ky. 251 , 90 S.W.2d 36, 1935 Ky. LEXIS 782 ( Ky. 1935 ) (decided under prior law).

The intent of the legislature was to fix arbitrarily the amount of the award for injuries resulting in the loss of a member regardless of the extent of disability. Holt v. West Kentucky Coal Co., 350 S.W.2d 155, 1961 Ky. LEXIS 87 ( Ky. 1961 ) (decided under prior law).

It is the intention of the Kentucky Workers’ Compensation Law to compensate an injured man for the loss of his earning capacity and not merely for his physical injury as such. Princess Coals, Inc. v. Stapleton, 435 S.W.2d 62, 1968 Ky. LEXIS 193 ( Ky. 1968 ) (decided under prior law).

The purpose of this section is to provide a means whereby a designated person (dependent) may initiate or continue a claim for disability sustained by a worker in an industrial accident for a period from the date thereof to the time of his death when there has been no adjudication or payment in full has not been made. Silvers v. Marley Co., 566 S.W.2d 767, 1978 Ky. App. LEXIS 525 (Ky. Ct. App. 1978).

The specific purpose of this section is the computation of benefits and there is a legislative declaration that benefits be paid based on a statutorily determined percentage of average weekly earnings. Transport Motor Express, Inc. v. Finn, 574 S.W.2d 277, 1978 Ky. LEXIS 419 ( Ky. 1978 ).

The purpose of the workers’ compensation statutes is to compensate an employee for wages lost and anticipated to be lost in the future because of a work-related injury which has impaired the worker’s earning power; such an award is not for the physical injury itself, but is one where the effect of the injury on earning capacity is presumed to be that set forth in the schedule. Hulsey v. Commonwealth Crime Victims Compensation Bd., 628 S.W.2d 890, 1982 Ky. App. LEXIS 203 (Ky. Ct. App. 1982).

The former phrase in subdivision (1)(b) of this section that “but such benefits shall not be paid after the employee becomes eligible for normal old age benefits under the Federal Old Age, Survivors and Disability Insurance Act . . . . . ” was not so vague and ambiguous as to violate the workers’ due process and equal protection rights guaranteed by the federal and state Constitutions; the rationale behind the addition of that language was in large part the prevention of the duplication of wage losses, and it was implicit in the construction of the statute that the Legislature intended the phrase “eligible for normal old age benefits” to include drawing or receiving same. Brooks v. Island Creek Coal Co., 678 S.W.2d 791, 1984 Ky. App. LEXIS 551 (Ky. Ct. App. 1984) (decision under this section prior to 1982 amendment).

While an employer should not be relieved of liability on an injury claim by the existence of an occupational disease claim, one of the underlying purposes of creating a subsequent injury fund was to encourage employers to hire already disabled workers. To that end, the employer has an interest in being held liable for no more of the disability than that received in his employ. Beale v. Shepherd, 809 S.W.2d 845, 1991 Ky. LEXIS 20 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 91 (Ky. July 3, 1991).

Workers’ compensation act mandates an award of income benefits to a worker who suffers death or occupational disability as a result of a work-related accident or occupational disease. Williams v. Eastern Coal Corp., 952 S.W.2d 696, 1997 Ky. LEXIS 108 ( Ky. 1997 ).

The purpose of the statutory scheme for calculating permanent partial disability benefits in subdivision (1)(c) is similar to the purposes for the provisions relating to rehabilitation benefits in KRS 342.710 ; the shared purpose of both sections is to motivate workers to return to work and to encourage employers to retain injured workers at wages equal to or greater than those earned before the injury, and the employer’s beliefs about its employee’s post-injury physical capabilities do not constitute the litmus test for determining the employee’s rights to benefits under either statutory provision. Carte v. Loretto Motherhouse Infirmary, 19 S.W.3d 122, 2000 Ky. App. LEXIS 54 (Ky. Ct. App. 2000).

3. Construction With Other Laws.

The “tier-down” provisions of subsection (4) do not conflict with the age discrimination provisions of KRS Chapter 344; that chapter does not pertain to enactments of the Legislature, and moreover, there is no evidence that claimant did not receive the full benefit of the Workers’ Compensation Act due to his age. Wynn v. Ibold, Inc., 969 S.W.2d 695, 1998 Ky. LEXIS 92 ( Ky. 1998 ).

Board’s decision that a doctor’s opinion as to a worker’s impairment was not supported by substantial evidence construed KRS 342.730 and was not based on factual considerations; thus, pursuant to KRS 342.285 , the issue was one of law and did not require the employer to first file a petition for reconsideration under KRS 342.281 in order to preserve the issue for review. Brasch-Barry Gen. Contrs. v. Jones, 175 S.W.3d 81, 2005 Ky. LEXIS 326 ( Ky. 2005 ).

Employee could not obtain relief from an erroneous award of KRS 342.730 permanent total disability benefits that was entered, as the authority under which the employee tried to reopen the award did not apply to workers’ compensation proceedings. While the employee could have moved for reconsideration of the award pursuant to KRS 342.185 , the employee failed to do so and, thus, was not entitled to relief from the erroneous award. Burroughs v. Martco, 339 S.W.3d 461, 2011 Ky. LEXIS 74 ( Ky. 2011 ).

Portion of statute dealing with the termination of benefits upon qualification for old-age Social Security benefits did not violate federal law because the State of Kentucky, not the employer, was discriminating against the claimant on the basis of age; however, it was suggested that the Kentucky Supreme Court reconsider whether the statute violated the Equal Protection Clause of the United States Constitution. Cruse v. Henderson Cnty. Bd. of Educ., 2015 Ky. App. LEXIS 103 (Ky. Ct. App. July 10, 2015), aff'd in part and rev'd in part, 2017 Ky. Unpub. LEXIS 67 (Ky. Dec. 14, 2017).

4. Application.

Where miner was last exposed to hazards of pneumoconiosis after January 1, 1973, the increase in benefits provided by this section applied but was deferred until expiration of the federal black-lung program, and the maximum benefits payable were computed by the formula of KRS 342.095 which was repealed effective January 1, 1973. Maggard v. International Harvester Co., 508 S.W.2d 777, 1974 Ky. LEXIS 632 ( Ky. 1974 ).

Where claimant’s alleged injury did not involve a loss or injury to a member of the body, this section was inapplicable. Mitchell v. Union Carbide Corp., 655 S.W.2d 17, 1983 Ky. App. LEXIS 329 (Ky. Ct. App. 1983).

Noncompensable injury should not be considered when determining the extent of a worker’s occupational disability for awarding benefits. The section’s limit on a worker’s claim to 425 weeks, rather than the duration of the injury, does not deprive the worker of constitutional rights of recovery for injury because, if the worker elects to proceed under it, the worker’s compensation system replaces all but intentional tort liability on the part of employers. Edwards v. Louisville Ladder, 957 S.W.2d 290, 1997 Ky. App. LEXIS 96 (Ky. Ct. App. 1997).

Widow was not eligible to receive income benefits, but the administrative law judge held that the two-year provision contained in the first sentence of KRS 342.730(4) applied; however, the clear and unambiguous language of the statute states that the two-year provision applies to income benefits awarded to employees and is not contained in the sentence applicable to spouses and dependents, and therefore the only reasonable interpretation of the statute is that the legislature did not intend for spouses and dependents to qualify for a minimum two years of income benefits. Campbell v. Hauler's Inc., 320 S.W.3d 707, 2010 Ky. App. LEXIS 156 (Ky. Ct. App. 2010), overruled in part, Tryon Trucking, Inc. v. Medlin, 586 S.W.3d 233, 2019 Ky. LEXIS 378 ( Ky. 2019 ).

Administrative law judge (ALJ) erred by limiting a claimant’s weekly benefits to 75% of the state’s average weekly wage because KRS 342.730(1)(c)1 applied to his awards. The ALJ did not commit an error of fact but a patent error in applying the law to the facts as found. Sidney Coal Co. v. Kirk, 364 S.W.3d 168, 2012 Ky. LEXIS 57 ( Ky. 2012 ).

Claim satisfied both conditions for retroactive application of the newly amended version of Ky. Rev. Stat. Ann. § 342.730(4); the administrative law judge erroneously applied the unconstitutional version of the statute to the claimant’s award, and the board correctly reversed that but erred by remanding the claim for entry of an award pursuant to the 1994 version of the statute. An award was to be entered applying the 2018 version of the statute. Pine Branch Mining, LLC v. Hensley, 590 S.W.3d 268, 2019 Ky. App. LEXIS 183 (Ky. Ct. App. 2019).

5. — 1994 Amendments.

Since the changes in the rights and obligations of the parties embodied in the 1994 amendments to this section which prohibited consideration of prior, active non-work-related disability when determining the extent of a worker’s occupational disability for the purpose of awarding income benefits, constituted substantial rather than remedial or procedural changes, such amendments should not be applied to causes of action which arose before their effective date. Spurlin v. Adkins, 940 S.W.2d 900, 1997 Ky. LEXIS 34 ( Ky. 1997 ).

Provisions of subsection (4), reducing benefits after claimant’s sixty-fifth birthday, did not apply to that portion of claimant’s award attributable to injuries that occurred before the effective date of those provisions. Leeco, Inc. v. Crabtree, 966 S.W.2d 951, 1998 Ky. LEXIS 49 ( Ky. 1998 ).

The 1994 amendments to paragraph (1)(b) are not retroactive in effect, and therefore had no bearing on case of claimant whose injuries occurred in October 1993. Mosely v. Ford Motor Co., 968 S.W.2d 675, 1998 Ky. App. LEXIS 39 (Ky. Ct. App. 1998).

6. — 1990 Amendment.

It is abundantly clear that 1990 amendment to subsection (3) of this section was to correct ambiguity. As is evidenced by the amendment itself, the legislature did not intend to treat the survivors of workers awarded income benefits under KRS 342.732 differently than those awarded income benefits under this section. Clearly, then, those classes should not be treated disparately because their claims arose between October of 1987, and July of 1990. Bowling v. Special Fund, 878 S.W.2d 22, 1994 Ky. LEXIS 69 ( Ky. 1994 ).

The 1990 amendment to subsection (3) of this section substituting the word “chapter” for “section” applies to income benefits pursuant to KRS 342.732 which arose on or after October 28, 1987. Bowling v. Special Fund, 878 S.W.2d 22, 1994 Ky. LEXIS 69 ( Ky. 1994 ).

Widow of deceased worker, who was entitled to benefits under KRS 342.732 (1)(d), was not precluded from obtaining survivor’s benefits even though prior to July, 1990, such benefits were not authorized when award was made pursuant to KRS 342.732 , as the effect of the 1990 amendment to this section was to authorize such survivor’s benefits in claims arising under KRS 342.732, where worker died prior to amendment and worker’s compensation claim was pending. Williamson v. Island Creek Coal Co., 899 S.W.2d 499, 1995 Ky. App. LEXIS 94 (Ky. Ct. App. 1995).

7. Injury.

Workers’ compensation claimant’s application for benefits was properly denied as the claimant’s injury was not work-related where: (1) she was injured while playing volleyball during her employer’s picnic, (2) the injury occurred off of the employer’s premises and outside of the normal working hours, (3) the claimant was not required to attend the picnic, (4) any benefit of the event to the employer consisted of improving employee morale, which was only intangible and was not substantial, and (5) the pick-up volleyball game in which she was injured was neither organized nor controlled by the employer, and the claimant’s participation was purely voluntary. Smart v. Georgetown Cmty. Hosp., 170 S.W.3d 370, 2005 Ky. LEXIS 226 ( Ky. 2005 ).

Consensus procedure under KRS 342.316 for coal workers’ pneumoconiosis claims did not violate equal protection under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, and 3 because the inherent differences in pneumoconiosis, which was slow to develop, and a traumatic injury provided a reasonable basis for the different statutory treatment for such workers’ compensation claims. KRS 342.316 (13) did not impose a greater burden of proof than on those workers who claimed benefits under KRS 342.730 as the presumption in the consensus procedure was a rebuttable one that could be overcome with clear and convincing evidence. Durham v. Peabody Coal Co., 272 S.W.3d 192, 2008 Ky. LEXIS 240 ( Ky. 2008 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

8. — Degree.

Injury resulting in paralysis of leg and paralysis of side and back is to be compensated for as permanent partial disability. Kentucky Distilleries & Warehouse Co. v. James, 205 Ky. 185 , 265 S.W. 629, 1924 Ky. LEXIS 85 ( Ky. 1924 ) (decided under prior law).

Where evidence was that employee’s total disability resulted entirely from traumatic injury and not from any prior or existing disease, compensation board correctly omitted any determination of relative amount of disability resulting from disease and from such injury. Ajax Coal Co. v. Collins, 269 Ky. 222 , 106 S.W.2d 617, 1937 Ky. LEXIS 567 ( Ky. 1937 ) (decided under prior law).

Where there is an injury but no severance, and where the claimant suffers greater disability than he would have suffered if there had been a severance of the member, the board may apply the general law, determine the extent of the disability, and award compensation on that basis. Black Mountain Corp. v. Letner, 303 Ky. 807 , 199 S.W.2d 611, 1947 Ky. LEXIS 560 ( Ky. 1947 ) (decided under prior law).

Where the undisputed evidence showed that the claimant had fractured his wrist and returned to regular employment on the following day, and where the only medical evidence repeatedly established that he was physically able to perform all types of labor, there was no evidence to support a necessarily implicit board finding that a probability of future impairment of earning capacity was present, and thus the board erred in granting an award based on a finding that the claimant had sustained a 20 percent partial disability. Harry Gordon Scrap Materials, Inc. v. Davis, 478 S.W.2d 731, 1972 Ky. LEXIS 345 ( Ky. 1972 ) (decided under prior law).

Where expert medical testimony indicated that defendant’s 50% permanent partial disability was “functional,” the Board did not abuse its discretion by translating the 50% functional disability into a 50% “occupational” disability. General Tire & Rubber Co. v. Rule, 479 S.W.2d 629, 1972 Ky. LEXIS 312 ( Ky. 1972 ) (decided under prior law).

Where the claimant’s injuries extended far beyond mere facial disfigurement, embracing impairment of hearing and breathing, inability to chew food, stomach ulcers and pain, the injuries clearly were of “appreciable proportions” in the sense that they were of substantial proportions or of significant consequence. Island Creek Coal Co. v. Springer, 479 S.W.2d 890, 1972 Ky. LEXIS 324 ( Ky. 1972 ) (decided under prior law).

Where the claimant returned to work after his injury, and where his superiors and the physicians testified that his work was not affected by the accident and one physician stated that the claimant had sustained a ten to 15 percent functional disability while another testified that the functional disability was five percent, the board was not required to find that the claimant had sustained a permanent bodily injury of significant proportions. Atcher v. Kentucky State Police, 483 S.W.2d 116, 1972 Ky. LEXIS 168 ( Ky. 1972 ) (decided under prior law).

It is the prerogative of the Board rather than the courts to determine the degree of functional disability on the basis of the conflicting medical testimony and to translate the functional disability into occupational disability. Kentucky Carbon Corp. v. Dotson, 573 S.W.2d 368, 1978 Ky. App. LEXIS 612 (Ky. Ct. App. 1978).

Where there was conflicting medical testimony as to the percentage of functional disability attributable to one of two (2) injuries, the Board’s finding that the claimant was only 30% disabled by such injury and that only part of his loss of earnings was attributable thereto was based on substantial evidence and could not be set aside. Kentucky Carbon Corp. v. Dotson, 573 S.W.2d 368, 1978 Ky. App. LEXIS 612 (Ky. Ct. App. 1978).

Not all permanent injuries may be classified as injuries of “appreciable proportions.” Chemetron Corp. v. McKinley, 574 S.W.2d 332, 1978 Ky. App. LEXIS 620 (Ky. Ct. App. 1978).

9. —Member.
10. — — Leg.

Board had power to award compensation to employee for injured knee on basis of one-third disability to body as a whole, though compensation for loss of leg would have been lesser amount. Black Mountain Corp. v. Adkins, 280 Ky. 617 , 133 S.W.2d 900, 1939 Ky. LEXIS 164 ( Ky. 1939 ) (decided under prior law).

Where severe burns suffered by claimant resulted in amputation of his right leg and the weakening of his left leg, he was properly awarded compensation for total permanent disability rather than being limited to award for loss of leg. C. Lee Cook Mfg. Co. v. Hodges, 304 Ky. 9 , 199 S.W.2d 635, 1946 Ky. LEXIS 929 ( Ky. 1946 ) (decided under prior law).

Where the claimant had returned to full-time employment earning more than he earned at the time of his injury, and where, although there was some limitation in the flexion of claimant’s left knee, there was medical testimony that there was “a good chance” that these symptoms would gradually subside, there was ample evidence to support the Board’s finding that claimant’s leg injury would not limit his occupational opportunities. Messamore v. Peabody Coal Co., 569 S.W.2d 693, 1978 Ky. App. LEXIS 565 (Ky. Ct. App. 1978).

11. — — Foot.

Since nature of foot amputation necessarily contemplates amputation at or above ankle, proper place being at middle of shin bone, where there is injury to foot only, amputation of foot at five inches above ankle constitutes only loss of foot and is compensable as such. Marshall v. Octavia J. Coal Min. Co., 252 Ky. 460 , 67 S.W.2d 697, 1934 Ky. LEXIS 806 ( Ky. 1934 ) (decided under prior law).

12. — —Hearing Loss.

The statutory schedule loss formula for hearing loss contained in this section is not the exclusive method for computing benefits for hearing loss. Henry Vogt Machine Co. v. Quiggins, 596 S.W.2d 17, 1979 Ky. App. LEXIS 518 (Ky. Ct. App. 1979).

KRS 342.730 5 does not limit hearing loss disability benefits to an award pursuant to KRS 342.730 (1)(b); KRS 342.730(1)(a) merely provides that a combination of a hearing loss cannot add to another injury claim to create a total disability under KRS 342.730 and a partial disability under KRS 342.7305 . Therefore, an employee’s claim for total disability based on an occupational hearing loss was properly granted. Webster County Coal Corp. v. Lee, 125 S.W.3d 310, 2003 Ky. App. LEXIS 212 (Ky. Ct. App. 2003).

Brief and single reference to the claimant’s hearing loss did not constitute consideration within the meaning of the statute; when assessed against the substantial proof the administrative law judge (ALJ) identified supporting the finding of permanent total disability, the claimant’s hearing loss was not a significant factor in the ALJ’s ultimate conclusion. Pine Branch Mining, LLC v. Hensley, 590 S.W.3d 268, 2019 Ky. App. LEXIS 183 (Ky. Ct. App. 2019).

13. — — Hand.

Where there was 100% disability of one hand and the evidence disclosed the injury prevented further work at manual labor, which was the only employment for which the injured employee was fitted by training and education, it was error for the board to assess compensation for total disability rather than for the listed compensation for such permanent partial disability. Kentucky Cardinal Coal Corp. v. Delph, 296 Ky. 295 , 176 S.W.2d 886, 1943 Ky. LEXIS 152 ( Ky. 1943 ) (decided under prior law).

14. — — Loss of Eye.

When one-eyed employee suffered accidental loss of his remaining eye, a case of total disability existed, and such employee received total compensation less amount which would have been allowed for loss of first eye through injury. Combs v. Hazard Blue Grass Coal Corp., 207 Ky. 242 , 268 S.W. 1070, 1925 Ky. LEXIS 65 ( Ky. 1925 ) (decided under prior law).

Where an industrial machine operator lost the sight of one eye in an industrial accident and as a result lost his depth perception thus prohibiting him from working on machinery with moving parts, the employee was limited to the compensation specified for loss of an eye. Owens v. Kroehler Mfg. Co., 461 S.W.2d 103, 1970 Ky. LEXIS 612 ( Ky. 1970 ) (decided under prior law).

Where claimant who lost the sight of his right eye in an industrial accident in 1969 had lost the sight of his left eye when he was 12 years old for which he was not compensated, the amount for the uncompensated loss must be excluded from the remaining compensation for permanent and total disability. Young v. Kentucky Baptist Hospital, 483 S.W.2d 148, 1972 Ky. LEXIS 179 ( Ky. 1972 ) (decided under prior law).

A claimant who lost the use of one eye was entitled to have his degree of occupational disability fixed by the Workers’ Compensation Board and, if the benefits allowable on the basis of that disability exceeded those that would be payable in accordance with an award under a former income benefits schedule, to be compensated accordingly. Blair v. General Electric Co., 565 S.W.2d 631, 1978 Ky. LEXIS 357 ( Ky. 1978 ) (decision prior to 1980 amendment).

It is not possible for a laboring man to lose the use of an eye and not suffer some loss of his “ability to labor” and some limitations of his “occupational opportunities to obtain the kind of work he is customarily able to do” and if the injury “adversely affects” the worker’s “ability to labor” or his “occupational opportunities,” then “his compensation benefits shall not be limited” to the schedule. Blair v. General Electric Co., 565 S.W.2d 631, 1978 Ky. LEXIS 357 ( Ky. 1978 ).

15. — — Loss of Vision.

An award for total disability may be made to a worker who has lost the sight of one eye or has had his vision impaired if the worker proves that the loss of the eye or impairment of vision has rendered him unable to perform manual labor; otherwise, only a partial disability award can be made. Roberts v. Black Mountain Corp., 280 Ky. 266 , 132 S.W.2d 941, 1939 Ky. LEXIS 98 ( Ky. 1939 ) (decided under prior law).

The loss of 90% vision of one eye constitutes industrial blindness, and an employee sustaining such loss was entitled to compensation for total and permanent loss of the sight of an eye. Black Starr Coal Corp. v. Reeder, 278 Ky. 532 , 128 S.W.2d 905, 1939 Ky. LEXIS 439 ( Ky. 1939 ) (decided under prior law).

Industrial blindness constitutes “total” loss of vision for compensation cases. Kibbey v. General American Transp. Corp., 404 S.W.2d 15, 1966 Ky. LEXIS 281 ( Ky. 1966 ) (decided under prior law).

In considering a claim, the board must disregard the use of eyeglasses or lens in determining the amount of an award “for the total and permanent loss of the sight of an eye . . . . . ” Pargas Co. v. Hagan, 428 S.W.2d 779, 1968 Ky. LEXIS 728 ( Ky. 1968 ) (decided under prior law).

16. — To Body as a Whole.

Where an employee suffers, to his hand, arm, foot or leg, an injury of such nature and degree as to affect his body, or his mind, or his ability to labor, or his opportunity to secure employment, to a greater extent than would be the case had he suffered a complete severance of the injured member, he should be awarded compensation commensurate with his disability. Central Truckaway System v. May, 299 Ky. 85 , 184 S.W.2d 889, 1945 Ky. LEXIS 387 ( Ky. 1945 ) (decided under prior law).

Board can award more for disability to the body resulting from an injury to a limb than for the severance of the limb itself. Black Mountain Corp. v. Adkins, 280 Ky. 617 , 133 S.W.2d 900, 1939 Ky. LEXIS 164 ( Ky. 1939 ) (decided under prior law).

Where there is no severance and no physical injury extends beyond the member itself, the disability, as distinguished from the injury, must be computed to the body as a whole. Stumbo & Vance Coal Co. v. Tackett, 300 S.W.2d 232, 1957 Ky. LEXIS 444 ( Ky. 1957 ) (decided under prior law).

In determining whether a scheduled injury creates a disability extending to the body as a whole, the board must consider the two interrelated ingredients or factors of physical disability and de facto inability to earn wages. Princess Coals, Inc. v. Stapleton, 435 S.W.2d 62, 1968 Ky. LEXIS 193 ( Ky. 1968 ) (decided under prior law).

17. — Multiple Injuries.

The fact that employee, who received injuries to face, brain and skull, had sustained only 80% loss of vision did not require that he be given an award for only partial permanent disability, on the theory that this section only authorizes an award for total disability in case of total loss of vision, where injury had resulted in permanent deformity of teeth and jaw, impairment of memory and senses, frequent pain, dizzy spells, loss of balance, and epileptic tendency. Central Truckaway System v. May, 299 Ky. 85 , 184 S.W.2d 889, 1945 Ky. LEXIS 387 ( Ky. 1945 ) (decided under prior law).

18. — Loss of Skill.

In situations wherein the effect of the injury to or loss of a member extends beyond the member so that it adversely affects the worker’s general ability to labor, or limits his occupational opportunities to obtain the kind of work he is customarily able to do, he is entitled to compensation for such disability and is not limited by the schedule of benefits. Illini Exploration, Inc. v. Ashby, 430 S.W.2d 330, 1968 Ky. LEXIS 399 ( Ky. 1968 ) (decided under prior law).

Where, after his injury, the plaintiff continued employment at a wage equal to that earned before the injury but could no longer operate a loader or load coal, he was entitled to a finding of some permanent disability and an allowance therefor. Round Mountain Coal Co. v. Tackett, 433 S.W.2d 128, 1968 Ky. LEXIS 262 ( Ky. 1968 ) (decided under prior law).

19. — Preexisting Injury.

Where it was found that ten percent of totally disabled employee’s disability was due to previous injury, for which he was compensated, board correctly awarded him total compensation less amount already paid to him for such previous injury. Ajax Coal Co. v. Collins, 269 Ky. 222 , 106 S.W.2d 617, 1937 Ky. LEXIS 567 ( Ky. 1937 ) (decided under prior law).

The preexisting condition should be considered and the disability should be apportioned, having regard for such condition. Hempfling v. Edington, 368 S.W.2d 182, 1963 Ky. LEXIS 39 ( Ky. 1963 ) (decided under prior law).

Where the claimant was determined to have a temporary total disability and granted an open-end award and there was evidence of a preexisting condition which was aggravated by the injury, it was proper to apportion the award between the employer and the special fund. Cabe v. Lexington Laundry Co., 423 S.W.2d 909, 1968 Ky. LEXIS 499 ( Ky. 1968 ) (decided under prior law).

20. —Evidence.

Evidence that mine employee, since injury, had continued to engage in remunerative manual labor justified compensation board in discounting doctor’s testimony of a total permanent disability and making an award only for 50% disability. Three Point Coal Co. v. Moser, 298 Ky. 868 , 184 S.W.2d 242, 1944 Ky. LEXIS 1027 ( Ky. 1944 ) (decided under prior law).

Where there is no contradiction of competent evidence as to permanent injury and resulting occupational disability and the board has no basis for saying the claimant is able to work as before, an award is required. Round Mountain Coal Co. v. Tackett, 433 S.W.2d 128, 1968 Ky. LEXIS 262 ( Ky. 1968 ) (decided under prior law).

Where unrebutted medical evidence established that a claimant’s bladder and sexual dysfunctions were caused by her work-related injury, although the administrative law judge could disbelieve this unrebutted medical evidence, since he failed to provide a sufficient explanation for his disbelief, a new hearing was required. Simpson v. Franklin Ins. Agency, Inc., 2007 Ky. App. LEXIS 345 (Ky. Ct. App. Sept. 21, 2007), aff'd, 2008 Ky. Unpub. LEXIS 38 (Ky. Nov. 26, 2008).

Evidence did not compel a finding that a claimant’s bowel dysfunction was due to her work-related injury, as no doctor testified to any impairment rating for that condition, and a urologist opined that her bowel problems were not related to her work injury. Simpson v. Franklin Ins. Agency, Inc., 2007 Ky. App. LEXIS 345 (Ky. Ct. App. Sept. 21, 2007), aff'd, 2008 Ky. Unpub. LEXIS 38 (Ky. Nov. 26, 2008).

Substantial evidence supported the finding of work-related sleep apnea where the ALJ had weighed the conflicting evidence and found a medical opinion coupled with the worker's testimony to be more credible. Voith Indus. Servs. v. Gray, 516 S.W.3d 817, 2017 Ky. App. LEXIS 59 (Ky. Ct. App. 2017).

21. Disabilities.

As a workers’ compensation claimant’s injury and award both occurred before December 12, 1996, his subsequent motion to reopen was granted, and the merits of his assertion that he was entitled to additional benefits were properly decided under the Osborne v. Johnson standard; the claimant’s increased award was not unreasonable and was properly affirmed on appeal as, although there was conflicting medical evidence, there was evidence that the claimant’s back injury was more disabling than it had been at the time of the initial award and considering the claimant’s age, education, work experience, and the credibility of his testimony, and the restrictions imposed by a physician, the claimant was totally disabled. Dingo Coal Co. v. Tolliver, 129 S.W.3d 367, 2004 Ky. LEXIS 75 ( Ky. 2004 ).

22. — Occupational.

Disability means occupational disability, as distinguished from functional impairment. Cook v. Paducah Recapping Service, 694 S.W.2d 684, 1985 Ky. LEXIS 230 ( Ky. 1985 ).

If the board determines that no occupational disability exists, there can be no award of benefits, even if there is some functional impairment. Cook v. Paducah Recapping Service, 694 S.W.2d 684, 1985 Ky. LEXIS 230 ( Ky. 1985 ).

If no occupational disability is found to exist, the board need make no finding as to the extent of functional disability. Cook v. Paducah Recapping Service, 694 S.W.2d 684, 1985 Ky. LEXIS 230 ( Ky. 1985 ).

Under this section, there can be no claim for disability by anyone unless there is, in fact, a disability. Bethenergy Mines, Inc. v. Easterling, 776 S.W.2d 842, 1989 Ky. App. LEXIS 91 (Ky. Ct. App. 1989).

Unlike claims controlled by this section, in which occupational disability is determined according to the criteria of KRS 342.0011 , claims controlled by subdivision (1)(b) of KRS 342.732 are subject to a presumption of occupational disability. Newberg v. Garrett, 858 S.W.2d 181, 1993 Ky. LEXIS 85 ( Ky. 1993 ).

Simply because the Administrative Law Judge (ALJ) considered lost earning potential when determining a minor claimant’s average weekly wage, it did not follow that the fact-finder could consider lost earning potential when determining occupational disability under this section. KRS 342.140 and this section are separate and distinct provisions and do not operate together. City of Paintsville v. Ratliff, 889 S.W.2d 784, 1994 Ky. LEXIS 136 ( Ky. 1994 ).

In light of appellant workers’ compensation claimant’s increased symptoms, increased functional impairment, and lower post-injury pay, the record showed that the effects of the claimant’s second work-related injury after a prior award were a substantial factor in causing the post-award loss of earning capacity, which met the standard for reopening under KRS 342.125(1) of the Kentucky Workers’ Compensation Act, and given the extent of the increased symptoms, such as loss of strength in the claimant’s hands and problems with gripping objects, which could reasonably have been considered factors which affected the claimant’s ability to do manual labor; the increased impairment; and the additional loss of earning capacity, the finding of an additional 40 percent disability was reasonable and should not have been reversed by the Court of Appeals. Brian House v. BJK Indus., 103 S.W.3d 13, 2003 Ky. LEXIS 74 ( Ky. 2003 ).

In considering the occupational disability of a workers’ compensation claimant, it is the function of the administrative law judge to weigh the evidence and to translate evidence of a functional impairment into a finding of occupational disability. Brian House v. BJK Indus., 103 S.W.3d 13, 2003 Ky. LEXIS 74 ( Ky. 2003 ).

Occupational disability is equated with a loss of earning capacity; furthermore, where an injured worker returns to work, the extent of an existing occupational disability is reflected in the individual’s post-injury wages. Brian House v. BJK Indus., 103 S.W.3d 13, 2003 Ky. LEXIS 74 ( Ky. 2003 ).

When the merits of a reopening of a workers’ compensation award for occupational disability are considered, the burden is on the claimant to show that the claimant sustained a post-award increase in occupational disability due to the effects of the claimant’s work injury. Brian House v. BJK Indus., 103 S.W.3d 13, 2003 Ky. LEXIS 74 ( Ky. 2003 ).

When a workers’ compensation claimant, on reopening, prevails before an administrative law judge on the issue of whether the claimant sustained a post-award increase in occupational disability due to the effects of the claimant’s work injury, the standard of review is whether the finding in the claimant’s favor is reasonable under the evidence. Brian House v. BJK Indus., 103 S.W.3d 13, 2003 Ky. LEXIS 74 ( Ky. 2003 ).

Administrative law judge did not err in finding a workers’ compensation claimant to be totally occupationally disabled by considering the occupational implications of the claimant’s injuries as, at the time of the claimant’s neck injury, Kentucky law provided that even though a claimant had a noncompensable occupational disability that existed prior to a compensable injury, the prior disability was not excluded when determining whether total disability existed. Thomas Heavy Hauling v. Powell, 2003 Ky. App. Unpub. LEXIS 309 (Ky. Ct. App. May 23, 2003).

23. —Permanent Partial Disability.

Administrative law judge did not err in deciding to apply KRS 342.730(1)(c)1 upon a finding of a permanent alteration in the workers’ compensation claimant’s ability to earn money due to the claimant’s injury because the claimant’s lack of the physical capacity to return to the type of work that the claimant performed for the employer was undisputed, and although the claimant was able to earn more money than at the time of the claimant’s injury, the unrebutted testimony indicated that the post-injury work was done out of necessity, was outside the claimant’s medical restrictions, and was possible only when the claimant took more narcotic pain medication than prescribed. Fawbush v. Gwinn, 103 S.W.3d 5, 2003 Ky. LEXIS 81 ( Ky. 2003 ).

Administrative law judge erred in enhancing a worker's compensation claimant's award by the Ky. Rev. Stat. Ann. § 342.730(1)(c)(1) triple multiplier where the evidence showed that she had the capacity to perform her pre-injury job post-injury, she had maintained the capacity to perform her pre-injury job on the date of her award, and there was no evidence that the aspects of her position currently giving her difficulty were requirements of her position and could not be accommodated. Lowe's Home Ctrs., Inc. v. Middleton, 2015 Ky. App. LEXIS 20 (Ky. Ct. App. Feb. 13, 2015), aff'd, 2015 Ky. Unpub. LEXIS 81 (Ky. Oct. 29, 2015).

In a workers' compensation case, an administrative law judge was not required to award permanent partial disability benefits from September 23, 2012, the date upon which a doctor assessed a functional impairment rating, because the obligation to pay permanent partial disability benefits was suspended during any period for which temporary total disability benefits were awarded. Uninsured Emplr.' Fund v. Poplar Brook Dev., 2015 Ky. App. LEXIS 145 (Ky. Ct. App. Oct. 9, 2015), aff'd, 2016 Ky. Unpub. LEXIS 72 (Ky. Sept. 22, 2016).

Employee’s employment could cease within the meaning of Ky. Rev. Stat. Ann. § 342.730(1)(c)(2) if the employee remained in a continual employment relationship with the employer. As used in Ky. Rev. Stat. Ann. § 342.730(1)(c)(2), the phrase “that employment” referred to the cessation of employment at which the individual earned an average weekly wage equal to or greater than the average weekly wage at the time of injury rather than to a particular employment. PC Metro Bottling (Pepsico) v. Feltner, 2020 Ky. App. LEXIS 103 (Ky. Ct. App. Sept. 11, 2020).

Claimant’s employment had ceased where his post-injury average weekly wage (AWW) was greater than his pre-injury AWW, upon the closure of the employer’s plant the claimant’s position as a bay driver was no longer available, and his AWW for his subsequent position as an account manager at another of the employer’s plants was not equal to or greater than his pre-injury AWW. PC Metro Bottling (Pepsico) v. Feltner, 2020 Ky. App. LEXIS 103 (Ky. Ct. App. Sept. 11, 2020).

24. —Total.

Where an employee was injured on the job but returned to his employment at the same salary and performed basically the same duties although he no longer was required to do heavy lifting, he was not totally disabled. Brownies Creek Collieries, Inc. v. Williams, 450 S.W.2d 237, 1970 Ky. LEXIS 432 ( Ky. 1970 ) (decided under prior law).

An award may be made for total temporary disability. Standard Products Co. v. Estes, 481 S.W.2d 98, 1972 Ky. LEXIS 234 ( Ky. 1972 ) (decided under prior law).

Where a determination was made that the claimant’s injury did not extend to his whole body, this precluded a claim for total disability. Preston v. Elm Hill Meats, Inc., 483 S.W.2d 136, 1972 Ky. LEXIS 176 ( Ky. 1972 ) (decided under prior law).

Where the board determined that the claimant’s disability, the effects of which were not fully realized, was permanent and partial so long as he was afforded work by his employer that he was able to do, such disability proved to be total and permanent when his employer went out of business and no other work was available to him in the area’s labor market. Dolt & Dew, Inc. v. Smith, 493 S.W.2d 711, 1973 Ky. LEXIS 498 ( Ky. 1973 ) (decided under prior law).

Evidence that claimant is unable to continue work in her usual occupation is not sufficient in itself to support an award based on total disability. Maloney's Discount Stores v. Caudill, 547 S.W.2d 784, 1977 Ky. App. LEXIS 636 , 1977 Ky. App. LEXIS 937 (Ky. Ct. App.), rev'd, 560 S.W.2d 15, 1977 Ky. LEXIS 565 ( Ky. 1977 ).

An award based upon permanent total disability must be premised upon a finding that the claimant was so physically impaired that she is not capable of performing any kind of work of regular employment or that regular employment in the kind of work she can perform is not available on the local market. Maloney's Discount Stores v. Caudill, 547 S.W.2d 784, 1977 Ky. App. LEXIS 636 , 1977 Ky. App. LEXIS 937 (Ky. Ct. App.), rev'd, 560 S.W.2d 15, 1977 Ky. LEXIS 565 ( Ky. 1977 ).

Where an employee suffered a work-related injury which resulted in 75 percent disability and an occupational disease which resulted in his being totally disabled, his employer was liable for the benefits payable for disability resulting from the injury and which would have resulted apart from the occupational disease, and therefore, the employer was liable for the maximum benefits to the employee under subsection (1)(b) of this section. Kyanco Coal Co. v. Prater, 602 S.W.2d 444, 1980 Ky. App. LEXIS 345 (Ky. Ct. App. 1980).

Miner who was found to be totally and permanently disabled in 1973 as a result of the occupational disease of pneumoconiosis and/or silicosis and was awarded the benefits applicable at that time for the maximum time available, and who returned to work in the mines, and in 1980 again applied for benefits for the same disease could not receive another award for full benefits where there was no evidence that it was a new disability and not the same disease. Stovall v. Stumbo, 676 S.W.2d 468, 1984 Ky. App. LEXIS 463 (Ky. Ct. App. 1984).

Even though the claimant had a noncompensable occupational disability which existed prior to the injury, this prior disability was not excluded when determining whether there was “total disability” for the purposes of subdivision (1)(a) of this section, but was later excluded in the apportionment process. Teledyne-Wirz v. Willhite, 710 S.W.2d 858, 1986 Ky. App. LEXIS 1039 (Ky. Ct. App. 1986).

Employee who suffered hip and abdominal injuries in a work-related accident and was subsequently forced to retire because of his inability to handle the physical demands of the job was entitled to total disability benefits; subsection (1)(b) was not made applicable by the fact that employee made two efforts to return to his job. Ashland Exploration v. Tackett, 971 S.W.2d 832, 1998 Ky. App. LEXIS 55 (Ky. Ct. App. 1998).

Preexisting impairments must be excluded in determining whether a claimant is totally occupationally disabled, regardless of whether that preexisting condition is disabling. Hill v. Sextet Mining Corp., 2000 Ky. App. LEXIS 133 (Ky. Ct. App. Nov. 9, 2000).

Substantial evidence supported an administrative law judge’s finding that a workers’ compensation claimant was totally disabled where: (1) the claimant’s doctor testified that an MRI scan showed a worsening of the claimant’s neck injury; (2) the doctor testified that the claimant’s cervical range of motion had diminished and that the claimant had spinal cord effacement, which would further deteriorate his physical condition and would ultimately require surgery; (3) the claimant testified that he could not use a computer, drive a truck for extended periods of time, or perform many daily activities without pain; and (4) the claimant testified that he did not believe that he could perform any income producing work given his age, education, and vocational background. Thomas Heavy Hauling v. Powell, 2003 Ky. App. Unpub. LEXIS 309 (Ky. Ct. App. May 23, 2003).

Because an employee did not act with deceit in keeping a correct medical history from a treating physician and other substantial and credible evidence supported the physician’s opinion with respect to an alleged preexisting injury, there was no basis to disturb the chief administrative law judge’s decision to award permanent partial occupational disability benefits to the employee. Manalapan Mining Co. v. Morgan, 2005 Ky. App. LEXIS 192 (Ky. Ct. App.), sub. op., 2005 Ky. App. Unpub. LEXIS 996 (Ky. Ct. App. Sept. 2, 2005).

Since the worker met the definition of temporary total disability where he was only offered weekend work, he was entitled to benefits under KRS 342.730(1). Williams v. FEI Installation, 2005 Ky. App. LEXIS 280 (Ky. Ct. App. Dec. 22, 2005), aff'd, 214 S.W.3d 313, 2007 Ky. LEXIS 23 ( Ky. 2007 ).

Because KRS 342.125(1)(d) requires only a “worsening of impairment,” a worker seeking a reopening of a prior award was not required to prove a greater permanent impairment rating in order to receive permanent total disability benefits; KRS 342.730(1)(a) and KRS 342.0011(11)(c) required a claimant who was partially disabled at the time of the initial award and totally disabled at reopening to show only that a worsening of impairment due to the injury was permanent and caused the claimant to be totally disabled. Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 2006 Ky. LEXIS 297 ( Ky. 2006 ).

Administrative law judge had the prerogative to discredit the claimant’s account of her pain due to self-limiting behavior, and sufficient evidence supported his finding that she was capable of sedentary work. Simpson v. Franklin Ins. Agency, Inc., 2007 Ky. App. LEXIS 345 (Ky. Ct. App. Sept. 21, 2007), aff'd, 2008 Ky. Unpub. LEXIS 38 (Ky. Nov. 26, 2008).

Because a worker’s entitlement to long-term disability benefits had little or no bearing on the worker’s entitlement to permanent total disability benefits, and because a judicial admission by the employer was not conclusive evidence of permanent total disability under KRS 342.0011 , the evidence did not compel such a finding. Ridener v. South Ky Rural Elec. Coop. Corp., 2009 Ky. App. LEXIS 9 (Ky. Ct. App. Jan. 23, 2009), aff'd, 2009 Ky. Unpub. LEXIS 137 (Ky. Oct. 29, 2009).

Workers’ compensation claimant was not entitled to receive at any time combined weekly benefits that exceeded the maximum for permanent total disability. Maximum benefit permitted by KRS 342.730(1)(a) did not apply only to individual awards. Lewis v. Ford Motor Co., 363 S.W.3d 340, 2012 Ky. LEXIS 31 ( Ky. 2012 ).

Administrative law judge was not precluded from awarding permanent total disability benefits even though an employee only requested permanent partial disability benefits because while such a result was unusual, the award and type of permanent disability benefits to which the employee was entitled was sufficiently preserved through the contested issue of benefits. Ky. Employers' Mut. Ins. v. Burnett, 432 S.W.3d 733, 2014 Ky. App. LEXIS 82 (Ky. Ct. App. 2014).

Purpose for awarding income benefits such as temporary total disability is to compensate workers for income lost due to injury, thereby enabling them to provide the necessities of life for themselves and their dependents, and once an injured employee reaches maximum medical improvement (MMI) he or she is no longer entitled to benefits; thus, the following only applies to employees who have not reached MMI but who reach a level of improvement sufficient to permit a return to employment. Trane Commer. Sys. v. Tipton, 481 S.W.3d 800, 2016 Ky. LEXIS 7 ( Ky. 2016 ).

It is not reasonable, and it does not further the purpose for paying income benefits, to pay temporary total disability (TTD) benefits to an injured employee who has returned to employment simply because the work differs from what she performed at the time of injury; therefore, absent extraordinary circumstances, an award of TTD benefits is inappropriate if an injured employee has been released to return to customary employment, and the employee has actually returned to employment. Trane Commer. Sys. v. Tipton, 481 S.W.3d 800, 2016 Ky. LEXIS 7 ( Ky. 2016 ).

In making any temporary total disability (TTD) benefits award, an administrative law must take into consideration the purpose for paying income benefits and set forth specific evidence-based reasons why an award of TTD benefits in addition to the employee's wages would forward that purpose. Trane Commer. Sys. v. Tipton, 481 S.W.3d 800, 2016 Ky. LEXIS 7 ( Ky. 2016 ).

Court of appeals erred in reversing an administrate law judge's (ALJ) decision because there was ample evidence of substance to support the ALJ's denial of an employee's request for additional temporary total disability (TTD) benefits; the employee's physician released her to perform light and sedentary work, which the employer provided for her, and the employee did not produce any evidence that the job required significant additional training or that it was beyond her intellectual abilities. Trane Commer. Sys. v. Tipton, 481 S.W.3d 800, 2016 Ky. LEXIS 7 ( Ky. 2016 ).

Purpose for awarding income benefits such as temporary total disability is to compensate workers for income lost due to injury, thereby enabling them to provide the necessities of life for themselves and their dependents, and once an injured employee reaches maximum medical improvement (MMI) he or she is no longer entitled to benefits; thus, the following only applies to employees who have not reached MMI but who reach a level of improvement sufficient to permit a return to employment. Trane Commer. Sys. v. Tipton, 481 S.W.3d 800, 2016 Ky. LEXIS 7 ( Ky. 2016 ).

It is not reasonable, and it does not further the purpose for paying income benefits, to pay temporary total disability (TTD) benefits to an injured employee who has returned to employment simply because the work differs from what she performed at the time of injury; therefore, absent extraordinary circumstances, an award of TTD benefits is inappropriate if an injured employee has been released to return to customary employment, and the employee has actually returned to employment. Trane Commer. Sys. v. Tipton, 481 S.W.3d 800, 2016 Ky. LEXIS 7 ( Ky. 2016 ).

In making any temporary total disability (TTD) benefits award, an administrative law must take into consideration the purpose for paying income benefits and set forth specific evidence-based reasons why an award of TTD benefits in addition to the employee's wages would forward that purpose. Trane Commer. Sys. v. Tipton, 481 S.W.3d 800, 2016 Ky. LEXIS 7 ( Ky. 2016 ).

25. — — Definition.

“Total disability” does not mean absolute helplessness or entire physical disability, but loss of earning power, whether manifested in inability to perform the type of work for which employee is trained or in inability to secure employment because of limited capacity to work. Olson v. Triplett, 255 Ky. 724 , 75 S.W.2d 366, 1934 Ky. LEXIS 322 ( Ky. 1934 ). See Leckie Collieries Co. v. Branham, 275 Ky. 748 , 122 S.W.2d 776, 1938 Ky. LEXIS 503 ( Ky. 1938 ); Wood Mosaic Co. v. Brown, 303 Ky. 741 , 199 S.W.2d 433, 1947 Ky. LEXIS 549 ( Ky. 1947 ). See Clark v. Gilley, 311 S.W.2d 391, 1958 Ky. LEXIS 189 ( Ky. 1958 ) (decided under prior law).

26. — — Presumptions.

The presumptions of total permanent disability are for the benefit of the injured employee and are intended to relieve him of the burden of proving total permanent disability in cases where the injury arose under the Workers’ Compensation Law, and they will not be applied to the employee’s detriment. Bennett v. White Coal Co., 288 Ky. 827 , 157 S.W.2d 73, 1941 Ky. LEXIS 161 ( Ky. 1941 ) (decided under prior law).

27. — — For Manual Labor.

A coal miner 59 years old who sustained a crushing fracture of the fourth vertebra, had no training in any other occupation, and had a limited education, and was so disabled as a result of this accident that he could not perform manual labor requiring much exertion, was totally disabled. Jellico Coal Mining Co. v. Chatfield, 200 Ky. 842 , 255 S.W. 842, 1923 Ky. LEXIS 205 ( Ky. 1923 ) (decided under prior law).

28. — — Denial.

Where the claimant sought benefits on the basis of a total disability but there was evidence of probative value that the claimant could do work of substantially the same nature as he performed before the injury, the board’s order denying the claim was upheld. Baker v. Codell Constr. Co., 437 S.W.2d 759, 1969 Ky. LEXIS 456 ( Ky. 1969 ) (decided under prior law).

29. — Combination.

Several partial disabilities, each and all resulting directly from the same accident, may be combined and considered in their aggregate effect upon the employee’s ability to labor and thus, where employee has sustained such injuries, awarding compensation for total rather than partial disability is proper. Central Truckaway System v. May, 299 Ky. 85 , 184 S.W.2d 889, 1945 Ky. LEXIS 387 ( Ky. 1945 ) (decided under prior law).

Where an employee who was capable of performing only manual labor in 1943 lost the sight of one eye but returned to work and, in 1948, as the result of another mining accident, suffered fractures in his right leg, and the leg refused to respond to treatment, and physicians testified that employee was permanently and totally disabled, the board’s award of 100% permanent disability was supported by competent evidence. Hardy Burlingham Mining Co. v. Sawyer, 254 S.W.2d 350, 1953 Ky. LEXIS 586 ( Ky. 1953 ) (decided under prior law).

Where the Workers’ Compensation Board found that coal employee had 50% permanent disability caused by back injury and arousal of a preexisting condition and that he also sustained 50% permanent disability due to pneumoconiosis, such finding amounted to an implicit finding that the employee suffered from total disability, rather than two separate disabilities; thus, the employee was entitled to benefits for as long as he remained disabled, and such benefits were not subject to the maximum period of 425 weeks. Sovereign Coal Corp. v. Adkins, 684 S.W.2d 850, 1985 Ky. App. LEXIS 732 (Ky. Ct. App.), op. withdrawn, 690 S.W.2d 129, 1985 Ky. App. LEXIS 521 (Ky. Ct. App. 1985).

It is not required that total disability be awarded in every case where there are two permanent partial disabilities equalling a total of 100 percent or more; such an automatic addition of percentages of disabilities is not required if there are specific findings of fact that the claimant is not totally disabled. Brownies Creek Collieries v. Lingar, 794 S.W.2d 641, 1990 Ky. App. LEXIS 115 (Ky. Ct. App. 1990).

An award of lifetime benefits was proper where an administrative law judge determined that a worker’s depression constituted a 50% increase in disability which, when combined with worker’s previously determined 50% disability, left him 100% occupational disability. Fischer Packing Co. v. Lanham, 804 S.W.2d 4, 1991 Ky. LEXIS 10 ( Ky. 1991 ).

When an employee is totally and permanently disabled, by a combination of injuries or of an injury and occupational disease, he ought to be compensated for life at the rate for total permanent disability under subdivision (1)(a) of this section, rather than for a limited duration and at the lesser rate for permanent partial disabilities under subdivision (1)(b) of this section. Each defendant should be liable for his share of the lifetime award. The dollar amount of the injury claim must be deducted from the maximum benefit allowed for total disability. The balance of the total disability allowable then becomes the effective amount of the occupational disease award. Beale v. Shepherd, 809 S.W.2d 845, 1991 Ky. LEXIS 20 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 91 (Ky. July 3, 1991).

Where an employee is permanently and totally occupationally disabled by an occupational disease and has also suffered a permanently and partially disabling injury, he will unquestionably receive lifetime benefits due to the occupational disease; it is not necessary to add partial disabilities together to reach a total disability award. Therefore, in cases where the claimant is entitled to lifetime benefits for occupational disease, the interests of the employer must be considered, and the excess disability, which is attributable to a partially disabling injury, should be computed as for a permanent partial disability using subdivision (1)(b) of this section. Beale v. Shepherd, 809 S.W.2d 845, 1991 Ky. LEXIS 20 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 91 (Ky. July 3, 1991).

Where employee’s several work-related injuries are not by themselves totally disabling, but where the combined injuries could result in a finding of total disability, lifetime benefits must be awarded even if injuries occurred in different calendar years. Campbell v. Sextet Mining Co., 912 S.W.2d 25, 1995 Ky. LEXIS 111 ( Ky. 1995 ).

Claimant who is rendered permanently and totally disabled by a work-related injury which occurs during the compensable period of a prior, work-related injury is entitled to an award of lifetime benefits, computed under subsection (1)(a) of this section, for the entire amount of disability not excluded as a prior, active condition. Spurlin v. Brooks, 952 S.W.2d 687, 1997 Ky. LEXIS 49 ( Ky. 1997 ).

Award for claimant’s 1986 back injury could extend for only 425 weeks, exclusive of any periods of temporary, total disability, with benefits payable at the 1986 rate, and claimant was not entitled to lifetime benefits for both his initial and subsequent back injuries. Spurlin v. Brooks, 952 S.W.2d 687, 1997 Ky. LEXIS 49 ( Ky. 1997 ).

When a claimant sought total disability benefits due to a head injury, the evidence did not compel a finding that his injury warranted a disability rating based on impairments under chapters of the American Medical Association Guides to the Evaluation of Permanent Impairment regarding both neurological and mental disorders, and the claimant was properly found entitled to partial disability benefits. Lanter v. Ky. State Police, 171 S.W.3d 45, 2005 Ky. LEXIS 228 ( Ky. 2005 ).

30. Disease.
31. — Preexisting.

Where an accident “lights up” a preexisting disease, it is compensable, but the award should be apportioned according to the contribution of each. American Rolling Mill Co. v. Stevens, 290 Ky. 16 , 160 S.W.2d 355, 1941 Ky. LEXIS 4 ( Ky. 1941 ) (decided under prior law).

Industry takes a man as it finds him and if, by reason of an injury, some latent congenital or preexisting condition is “lighted up,” excited or aggravated, the disability flowing therefrom is compensable. Parrott v. S. A. Healy Co., 290 S.W.2d 798, 1956 Ky. LEXIS 344 ( Ky. 1956 ) (decided under prior law).

If by reason of an injury, some latent disease or preexisting condition is “lighted up,” that is, initiated or excited or combined with, the disability flowing therefrom is compensable. Contractors Service & Supply Co. v. Chism, 316 S.W.2d 840, 1958 Ky. LEXIS 58 ( Ky. 1958 ) (decided under prior law).

32. — Evidence.

Evidence of preexisting disease was sufficient to support award for partial permanent disability, although evidence was weak and was contradicted by medical experts. Kabai v. Majestic Colleries Co., 293 Ky. 783 , 170 S.W.2d 357, 1943 Ky. LEXIS 711 ( Ky. 1943 ) (decided under prior law).

Where an employee and the employee’s widow were awarded workers’ compensation benefits based on a finding of manganese toxicity, but an autopsy report found evidence of Creutzfeldt-Jakob disease, an administrative law judge properly denied the employer’s motion to reopen because the report was not newly discovered evidence, and the post-award evidence that the finding was mistaken did not show a “mistake” within the meaning of KRS 342.125 . Russellville Warehousing v. Bassham, 237 S.W.3d 197, 2007 Ky. LEXIS 204 ( Ky. 2007 ).

33. Benefits.

Although an injured employee who was awarded a 50 percent permanent partial disability allowance returned to the same job at the same pay and subsequently obtained a higher classification and higher pay, since the board was entitled to consider age and future employment opportunities of the claimant in the general labor market in determining the occupational disability, the board did not err in making such award. Eastern Coal Corp. v. Butcher, 476 S.W.2d 832, 1972 Ky. LEXIS 396 ( Ky. 1972 ) (decided under prior law).

Where medical proof was given by a physician that the injury suffered by the employee resulted in a 20% permanent functional impairment to the body as a whole which would increase with time, the board erred in making award only for a temporary partial disability, regardless of the fact that the injured employee returned to the same job at the same pay and later received a different job at higher pay. Brown & Kerr, Inc. v. Ashabraner, 477 S.W.2d 791, 1972 Ky. LEXIS 365 ( Ky. 1972 ) (decided under prior law).

Since probable alternate reduction of earning capacity by a shortening of work life or a reduction of employment opportunities through a combination of age and physical impairment was not capable of being proved with exactitude, the board was allowed considerable leeway in its factual determination. Island Creek Coal Co. v. Springer, 479 S.W.2d 890, 1972 Ky. LEXIS 324 ( Ky. 1972 ) (decided under prior law).

Awards to dependents of deceased employees are controlled by the terms of the statutory provision in effect at the time of the injury. Trimble v. United Fuel Gas Co., 481 S.W.2d 658, 1972 Ky. LEXIS 259 ( Ky. 1972 ) (decided under prior law).

Where the widow, who was seeking continuation of payments awarded the husband for a myocardial infarction, filed the death certificate indicating the myocardial infarction as the cause of death, she created a rebuttable presumption in her favor which was overcome by medical records revealing the presence of a carcinoma in a terminal state and the continuation of payments was denied. Kirkhouse v. Eastern Kentucky University, 501 S.W.2d 581, 1973 Ky. LEXIS 135 ( Ky. 1973 ) (decided under prior law).

Pursuant to KRS 342.277(3), the collective bargaining agreement was not permitted to diminish the workers’ compensation claimant’s rights under the former version of KRS 342.730(1)(c)Ford Motor Co. v. Forman, 142 S.W.3d 141, 2004 Ky. LEXIS 176 ( Ky. 2004 ).

34. —Required.

Where there is no contradiction of competent evidence as to permanent injury and resulting occupational disability and the board has no basis for saying the claimant is able to work as before, an award is required. Round Mountain Coal Co. v. Tackett, 433 S.W.2d 128, 1968 Ky. LEXIS 262 ( Ky. 1968 ) (decided under prior law).

The Workers’ Compensation Appeal Board properly increased an administrative law judge’s impairment rating for an employee who suffered a permanent partial disability pursuant to KRS 342.730(1)(b), as the employee underwent a spinal fusion which required an automatically higher impairment rating. Audi v. Elam, 2011 Ky. App. LEXIS 122 (Ky. Ct. App. July 8, 2011), aff'd, 367 S.W.3d 598, 2012 Ky. LEXIS 93 ( Ky. 2012 ).

On an issue of first impression, the two-multiplier under Ky. Rev. Stat. Ann. § 342.730(1)(c)(2) applies to a claimant’s benefits when that claimant returns to work and later retires for reasons not solely related to the work-related injury itself. In such circumstances, the two-multiplier must be applied to comply with the unambiguous language of § 342.730(1)(c)(2). Active Care Chiropractic, Inc. v. Rudd, 556 S.W.3d 561, 2018 Ky. LEXIS 368 ( Ky. 2018 ).

Voluntary retirement cannot possibly be construed as an intentional, deliberate action with a reckless disregard of the consequences under Ky. Rev. Stat. Ann. § 342.730(1)(c)(2). Instead, voluntary retirement falls squarely within the statute as a cessation of employment for any reason, with or without cause. Active Care Chiropractic, Inc. v. Rudd, 556 S.W.3d 561, 2018 Ky. LEXIS 368 ( Ky. 2018 ).

35. — Proper Request.

Whereas subsection (3) of this section grants benefits where a deceased employee has filed or could have timely filed a valid claim in his lifetime, in a case where prior to his death, an employee continued working for the same employer, he could not have filed a timely claim, simply because he continued to work; had he ceased work for even one day, then, and only then, could he have requested benefits, and it follows, then that his widow could have as well; to hold otherwise would effectively transform workers’ compensation benefits into life insurance and such was not the intent of the Legislature. Bethenergy Mines, Inc. v. Easterling, 776 S.W.2d 842, 1989 Ky. App. LEXIS 91 (Ky. Ct. App. 1989).

A claimant who was partially, occupationally disabled by a combination of coal workers’ pneumoconiosis and occupational injury was not entitled to receive, for 425 weeks, benefits greater than 75% of the state’s average weekly wage, the maximum authorized by either subdivision (1)(b) of this section or KRS 342.732(1)(b), for permanent, partial, occupational disability. Mooney v. Pittsburg & Midway Coal Mining Co., 849 S.W.2d 527, 1993 Ky. LEXIS 55 ( Ky. 1993 ).

36. — Prevailing Conditions.

A partially disabled worker is to be allowed compensation in proportion to the percentage of his disability to perform the usual tasks required in his usual occupation. Baier v. Schnell, 323 S.W.2d 587, 1959 Ky. LEXIS 334 ( Ky. 1959 ) (decided under prior law).

The percentage of partial disability will be determined by the ratio of the prevailing wage rates in the kind of employment available to the worker to the wage rates earnable by him before being injured. Osborne v. Johnson, 432 S.W.2d 800, 1968 Ky. LEXIS 353 ( Ky. 1968 ), limited, Crib Diaper Service v. Standifer, 436 S.W.2d 501, 1969 Ky. LEXIS 477 ( Ky. 1969 ) (decided under prior law).

37. —Functional Impairment Rating.

Amendments of 1994 to subsection (1)(b) of this section reiterate that the functional impairment rating is controlling when the employee returns to work at a wage equal to or greater than the employee’s pre-injury wage unless a greater percentage of disability can be established under KRS 342.0011 which looks to, among other criteria, the decrease in wage earning capacity due to injury or loss of ability to compete to obtain the type of work the employee is customarily able to do. When this criteria is met an award for benefits for an occupational disability greater than the claimant’s established functional impairment is allowed; however, claimant failed to show that he was entitled to such benefits where he was earning the same wage at the time of maximum medical improvement and at the time of the injury so it was determined that there was no decrease in his wage earning capacity. City of Paintsville v. Ratliff, 889 S.W.2d 784, 1994 Ky. LEXIS 136 ( Ky. 1994 ).

When a mental injury is at issue, an administrative law judge is authorized to translate a class 1 through 5 AMA impairment into a percentage impairment for the purpose of determining the worker’s disability rating and calculating the income benefit. Knott County Nursing Home v. Wallen, 74 S.W.3d 706, 2002 Ky. LEXIS 96 ( Ky. 2002 ).

Administrative law judge properly found that claimant had no permanent impairment where the independent examiner admitted that he did not follow the directives of the AMA Guides in assessing the 7% impairment rating, even though the employer’s doctor did not expressly state how he reached his 0% impairment rating. Williams v. FEI Installation, 2005 Ky. App. LEXIS 280 (Ky. Ct. App. Dec. 22, 2005), aff'd, 214 S.W.3d 313, 2007 Ky. LEXIS 23 ( Ky. 2007 ).

When calculating the income benefit for claimant’s work-related injury suffered during an automobile collision, the administrative law judge (ALJ) erred by failing to subtract the 5% impairment rating that physicians assigned based on the preexisting back condition from the 21% impairment rating that existed when he reached maximum medical improvement after the work-related lumbar fusion. The Supreme Court of Kentucky held that the ALJ had to award income benefits under KRS 342.730(1)(b) based on the 16% impairment rating that remained. Audi of Lexington v. Elam, 367 S.W.3d 598, 2012 Ky. LEXIS 93 ( Ky. 2012 ).

38. —Earning Capacity.

Determination of the workers’ post-injury earning capacity is to be based upon normal employment conditions. Osborne v. Johnson, 432 S.W.2d 800, 1968 Ky. LEXIS 353 ( Ky. 1968 ), limited, Crib Diaper Service v. Standifer, 436 S.W.2d 501, 1969 Ky. LEXIS 477 ( Ky. 1969 ) (decided under prior law).

The board’s determination of the extent to which the man’s earning capacity is impaired should be made on the basis of evidence as to the existence, in the local area or region, of regular employment opportunities for the type of work the medical testimony shows the man is capable of performing, and the prevailing wage rates in such employment. Osborne v. Johnson, 432 S.W.2d 800, 1968 Ky. LEXIS 353 ( Ky. 1968 ), limited, Crib Diaper Service v. Standifer, 436 S.W.2d 501, 1969 Ky. LEXIS 477 ( Ky. 1969 ) (decided under prior law).

Where the evidence disclosed that claimant was capable of performing some sort of regular work, the burden of proving the unavailability of such work as claimant could perform rested on claimant but burden could be sustained merely by proof sufficient to raise an inference that such work is not available on the local market. Maloney's Discount Stores v. Caudill, 547 S.W.2d 784, 1977 Ky. App. LEXIS 636 , 1977 Ky. App. LEXIS 937 (Ky. Ct. App.), rev'd, 560 S.W.2d 15, 1977 Ky. LEXIS 565 ( Ky. 1977 ).

Where a claimant lacked the physical capacity to return to the type of work he did when he was injured, but was earning the same amount, in awarding him permanent partial disability benefits based on the three multiplier provision in KRS 342.730(1)(c)1., the administrative law judge erred in not determining whether the claimant could continue to earn a wage that equaled or exceeded his pre-injury wages. Adkins v. Pike County Bd. of Educ., 141 S.W.3d 387, 2004 Ky. App. LEXIS 226 (Ky. Ct. App. 2004).

Where a claimant’s post-injury wage equals or exceeds the pre-injury wage, in determining whether the claimant can continue to earn such wages, the administrative law judge must consider a broad range of factors, only one of which is the ability to perform the current job. If it is unlikely that the claimant is able to earn such a wage indefinitely, then application of KRS 342.730(1)(c)1. is appropriate. Adkins v. Pike County Bd. of Educ., 141 S.W.3d 387, 2004 Ky. App. LEXIS 226 (Ky. Ct. App. 2004).

Worker failed to carry his burden of proving that he was entitled to a finding of a greater disability than that of having a permanent, partial disability of 13% with a 2-multiplier, as was found by the Administrative Law Judge (ALJ), after the worker was injured lifting a patient while working as a nursing assistant, because the ALJ’s decision, which relied upon the independent medical exam of a neurosurgeon, that the worker could return to medium duty work based on the lack of post-surgical neurological findings was not so unreasonable that it was erroneous as a matter of law, particularly considering the worker’s age and his trainability for different work. Adams v. NHC Healthcare, 2005 Ky. App. LEXIS 205 (Ky. Ct. App.), sub. op., 2005 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. Sept. 23, 2005), aff'd, 199 S.W.3d 163, 2006 Ky. LEXIS 201 ( Ky. 2006 ).

Where a retail sales clerk was injured while working for that employer and he was physically able to return to doing that work, although he could not physically perform the functions of his concurrent job as a printing press operator for another employer, his claim for enhanced income benefits based on wages from the other employer was properly refused because KRS 342.730(1)(c)1 provided the triple benefit for a loss of the physical capacity to return to the type of work that the employee performed when he was injured; concurrent employment earnings that could be considered were meant to account for the earning capacity of those who were partially disabled and who performed more than one low-wage or part-time job. Lowe's # 0507 v. Greathouse, 182 S.W.3d 524, 2006 Ky. LEXIS 13 ( Ky. 2006 ).

Board erred in vacating a determination by an administrative law judge that a technician was not entitled to a triple multiplier because, although the fact that the technician returned to the same job classification after his injury did not resolve whether he retained the capacity to perform his job, the ALJ clearly looked beyond the mere classification of the job; the modifications the technician made in performing his duties did not compel a finding that he lacked the physical capacity to return to that position. Square D Co. v. Miller, 2007 Ky. App. LEXIS 130 (Ky. Ct. App. May 4, 2007), aff'd in part and rev'd in part, 254 S.W.3d 810, 2008 Ky. LEXIS 108 ( Ky. 2008 ).

39. — —Effect on Future.

In determining whether or not a permanent facial disfigurement was compensable as a permanent partial disability impairing the future usefulness or occupational opportunities of the injured employee, it was proper for the compensation board to consider that, though the injured employee’s present usefulness, as measured by wages, was not affected because of the unusual economic situation, as normal times returned the employment opportunities of the injured employee would be affected by his disfigurement. National Distillers Products Corp. v. Jones, 309 Ky. 394 , 217 S.W.2d 813, 1948 Ky. LEXIS 1080 ( Ky. 1948 ) (decided under prior law).

In those instances in which the worker has sustained no loss of immediate earning capacity but has incurred a permanent injury of appreciable proportions, the Workers’ Compensation Board can and should make an allowance for some degree of permanent partial disability on the basis of the probability of future impairment of earning capacity as indicated by the nature of the injury, the age of the worker, and other relevant factors. Osborne v. Johnson, 432 S.W.2d 800, 1968 Ky. LEXIS 353 ( Ky. 1968 ), limited, Crib Diaper Service v. Standifer, 436 S.W.2d 501, 1969 Ky. LEXIS 477 ( Ky. 1969 ) (decided under prior law).

Where the Workers’ Compensation Board made a finding of permanent partial injury, but there was no clear finding that the injury was of “appreciable proportions” or that it would impair future earning capacity, and where claimant had a new job at comparable pay, the evidence was conflicting and the case must be remanded for further findings of fact. Chemetron Corp. v. McKinley, 574 S.W.2d 332, 1978 Ky. App. LEXIS 620 (Ky. Ct. App. 1978).

Workers' Compensation Board did not err in determining that the workers was unlikely to be able to continue earning a wage that equaled or exceeded his wage at the time of injury for the indefinite future given the worker's testimony as to his pulmonary limitations. Voith Indus. Servs. v. Gray, 516 S.W.3d 817, 2017 Ky. App. LEXIS 59 (Ky. Ct. App. 2017).

40. —Earnings After Accident or Disease.

The Board was in error in finding the claimant partially disabled for the period of time he continued to work after the time he was advised of his condition until the time he had to cease work for, so long as the claimant was able to satisfy the requirements of his occupation, he was not “disabled.” South East Coal Co. v. Ison, 446 S.W.2d 638, 1969 Ky. LEXIS 132 ( Ky. 1969 ), limited, South East Coal Co. v. Caudill, 465 S.W.2d 62, 1971 Ky. LEXIS 431 ( Ky. 1971 ) (decided under prior law).

The fact that an employee recovered sufficiently from the injury for which compensation was awarded to return to work for the same employer and is earning wages equal to or greater than those earned at the time of the injury would not justify denial by the board of an award of partial permanent compensation to the claimant. Hawkins Bros. Coal Com. v. Thacker, 468 S.W.2d 256, 1971 Ky. LEXIS 319 ( Ky. 1971 ) (decided under prior law).

Where a claimant for workers’ compensation is unable to work again in the coal mines because of pneumoconiosis/silicosis, the board must evaluate the percentage of disability resulting from the progressive pneumoconiosis/silicosis disease taking into consideration the fact that the claimant at the time of his hearing is working full time at a salary commensurate to that he earned in the mines. Young v. Marsillett, 473 S.W.2d 128, 1971 Ky. LEXIS 147 ( Ky. 1971 ) (decided under prior law).

Absent a determination that there was a probability that the claimant’s future earning capacity would have been reduced below the level of his earning capacity at the time of the injury, a finding that claimant’s future earning capacity may have been impaired, standing alone, was insufficient to support an award for permanent partial disability. Kentucky Alma Coal Co. v. Kirk, 497 S.W.2d 52, 1973 Ky. LEXIS 300 ( Ky. 1973 ) (decided under prior law).

Where there was substantial evidence to support the factual finding of the board that a reasonable probability of future impairment of earning capacity was present, the injury suffered by the claimant was of such appreciable proportions as to entitle him to benefits for permanent partial disability. Armco Steel Corp. v. Mullins, 501 S.W.2d 261, 1973 Ky. LEXIS 130 ( Ky. 1973 ) (decided under prior law).

Board erred in permitting employer to deduct from the 400 weeks, for which permanent partial disability compensation had been awarded, the 95 weeks employee worked after the accident. Cottrell v. Alton Box Board Co., 510 S.W.2d 19, 1974 Ky. LEXIS 519 ( Ky. 1974 ) (decided under prior law).

When an employee returned to work at the same or a greater wage after being injured on the job and was later fired for alleged criminal activity, it was error to award the employee double income benefits pursuant to KRS 342.730(1)(c)(2) because it was not determined whether the reason the employee was fired related to the employee’s original disabling injury, and such a relationship was required for the employee to receive double income benefits. Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671, 2009 Ky. LEXIS 66 ( Ky. 2009 ).

Employee's triple multiplier of a permanent partial disability award had to be remanded because an administrative law judge did not find the employee's post-injury average weekly wage, so it was premature for the Workers' Compensation Board to find no Fawbush analysis was required. Toyota Motor Mfg. v. Tudor, 491 S.W.3d 496, 2016 Ky. LEXIS 257 ( Ky. 2016 ).

Workers' Compensation Board's decision affirming an ALJ's application of the three multiplier set forth in Ky. Rev. Stat. Ann. § 342.730(1)(c)(1) in awarding the worker permanent partial disability was supported by substantial evidence where although he was able to perform janitorial tasks after his injury, he was no longer able to tolerate the presence of a solvent as he had pre-injury. Voith Indus. Servs. v. Gray, 516 S.W.3d 817, 2017 Ky. App. LEXIS 59 (Ky. Ct. App. 2017).

41. — — Ability to Do Light Work in Another Occupation.

Although an injured coal loader could do light work at tasks other than his usual occupation, he was totally disabled, as total disability means disqualification from performing usual tasks of worker in such a way as to enable him to procure and retain employment. Consolidation Coal Co. v. Crislip, 217 Ky. 371 , 289 S.W. 270, 1926 Ky. LEXIS 72 ( Ky. 1926 ) (decided under prior law).

Award of weekly compensation based on total disability may properly be conditioned that compensation need not be paid during weeks that employee is furnished light work which he is capable of performing at a wage equal to or exceeding an amount fixed in the award. Black Mountain Corp. v. McGill, 292 Ky. 512 , 166 S.W.2d 815, 1942 Ky. LEXIS 87 ( Ky. 1942 ) (decided under prior law).

42. —Calculation.

In determining the award for disability where, before injury, employee earned $62.50 for five-day week and, after injury, earned $60 for six-day week, the calculation should be made on the basis of the difference in the hourly rate of pay. Combs v. Smith, 406 S.W.2d 406, 1966 Ky. LEXIS 202 ( Ky. 1966 ) (decided under prior law).

It is a distortion of the computation process and an impermissible nullification of the effect of the exclusionary language of former subsection (4) of KRS 342.120 to meld together the distinct formulae of that section and this section to achieve a simultaneous determination of the proportionate and total amounts due. Transport Motor Express, Inc. v. Finn, 574 S.W.2d 277, 1978 Ky. LEXIS 419 ( Ky. 1978 ).

The percentage of disability figure referred to in subsection (1)(b) of this section in the computation of average weekly wage times the statutory percentage times the percent disability figure is the combined disability figure. Transport Motor Express, Inc. v. Finn, 574 S.W.2d 277, 1978 Ky. LEXIS 419 ( Ky. 1978 ).

Where the evidence showed that claimant worked in defendant’s laboratory, that he sustained an injury to his right knee in March, 1975, that this condition was diagnosed as chondromalacia of the patella and treated surgically, that heavy lifting, excessive stair climbing or squatting, or other activity causing contraction of the quadriceps under force would aggravate the condition; that although he had returned to work and was able to perform his duties, future complications could be anticipated; and thus his injury has caused a 15 percent functional disability to the leg, the Board erred in finding that the claim should be scheduled pursuant to a former income benefits schedule of this section and thus limiting benefits to 15 percent loss to the leg without making findings whether the injury was appreciable and would shorten claimant’s work life or limit his employment opportunities so as to create an occupational disability, and the Board’s decision must be vacated and remanded for such findings. Hawes v. Westvaco Corp., 588 S.W.2d 716, 1979 Ky. App. LEXIS 478 (Ky. Ct. App. 1979) (decision prior to 1980 amendment).

Any time a partial disability exists and the schedule benefits could likewise be used, the Board must make a determination as to the existence of any occupational disability, and once this is determined, the benefits as calculable under subparagraph (b) of subsection (1) of this section are ascertained; this monetary figure is then compared with the compensation due under the schedule and the greater of the two is applied. Glass v. Holloway Constr. Co., 591 S.W.2d 712, 1979 Ky. App. LEXIS 497 (Ky. Ct. App. 1979).

In using the formula set out in this section an adjustment may be necessary to properly match the calibration standards used in the audiometric instruments and those referred to in the statute. Henry Vogt Machine Co. v. Quiggins, 596 S.W.2d 17, 1979 Ky. App. LEXIS 518 (Ky. Ct. App. 1979).

Where a compensable condition is aggravated by work-related as well as nonwork-related factors, the entire condition, including the nonwork-related portion which became manifest concurrently with the work-related aggravation, must be considered when determining disability rating. Jett v. Peabody Coal Co., 828 S.W.2d 646, 1992 Ky. LEXIS 52 ( Ky. 1992 ).

The annual reduction of claimant’s award under subsection (4) should equal ten percent of the original award, not ten percent of the previous year’s award. Wynn v. Ibold, Inc., 969 S.W.2d 695, 1998 Ky. LEXIS 92 ( Ky. 1998 ).

Since the formula for average weekly wage which is contained in KRS 342.140 more accurately measure a worker’s actual income from a particular employment than the worker’s pay rate, for the purposes of KRS 342.730(1)(b), it is the injured worker’s pre- and post-injury average weekly wages which should be compared. Whittaker v. Robinson, 981 S.W.2d 118, 1998 Ky. LEXIS 167 ( Ky. 1998 ).

So long as claimant continued in employment where his weekly wage was equal to or greater than his average weekly wage at the time of injury, his weekly benefit would be reduced by one-half (1/2) under subsection (1)(c)2. Ball v. Big Elk Creek Coal Co., 1999 Ky. App. LEXIS 143 (Ky. Ct. App. Nov. 19, 1999), aff'd, 25 S.W.3d 115, 2000 Ky. LEXIS 94 ( Ky. 2000 ).

Subdivision (1)(b) clearly and plainly provides that the percentage of permanent partial disability arrived at by multiplying the degree of impairment by the listed factor should be applied against the lesser of 66 2/3% of the claimant’s average weekly wage or 75% of the state average weekly wage; just as plainly, the multipliers contained in subdivision (1)(c) are to be applied against the “benefits,” rather than the disability rating. Kiah Creek Mining v. Stewart, 2000 Ky. App. LEXIS 92 (Ky. Ct. App. Aug. 18, 2000), aff'd, 42 S.W.3d 614, 2001 Ky. LEXIS 57 ( Ky. 2001 ).

Subdivision (1)(d) does not alter the initial formula contained in subdivision (1)(b) by replacing 75% of the state average weekly wage with 100% of the state average weekly wage for all workers entitled to the (1)(c) 1. enhancements; rather, subdivision (1)(d) extends the benefit for a greater number of weeks for injured workers whose permanent partial disability exceeds 50%. Kiah Creek Mining v. Stewart, 2000 Ky. App. LEXIS 92 (Ky. Ct. App. Aug. 18, 2000), aff'd, 42 S.W.3d 614, 2001 Ky. LEXIS 57 ( Ky. 2001 ).

A determination of whether subdivision (1)(c)2. applies need not be made each week based upon a worker’s actual earnings for the week; rather than focusing upon a particular week which may or may not accurately reflect a worker’s earning capacity, a worker’s earning capacity is determined based on the average of his earnings over a period of 13 consecutive calendar weeks. Ball v. Big Elk Creek Coal Co., 25 S.W.3d 115, 2000 Ky. LEXIS 94 ( Ky. 2000 ).

Under subdivision (1)(c)2., pre- and post-injury average weekly wages are to be compared and, in those instances where the post-injury average weekly wage equals or exceeds the pre-injury average weekly wage, benefits for permanent, partial disability should be reduced by one half for so long as that post-injury employment is sustained. Ball v. Big Elk Creek Coal Co., 25 S.W.3d 115, 2000 Ky. LEXIS 94 ( Ky. 2000 ).

The proper method for calculating the award of a partially disabled worker who is unable to return to the type of work he performed when injured is: (1) calculate the benefit for partial disability as directed by KRS 342.730(1)(b); (2) multiply the benefit for partial disability by 1.5 (now 3) as directed by KRS 342.730(1)(c)1; and (3) apply KRS 342.730(1)(d). Stewart v. Kiah Creek Mining, 42 S.W.3d 614, 2001 Ky. LEXIS 57 ( Ky. 2001 ).

Board and administrative law judge erred in determining date on which benefit period began to run when they failed to apply KRS 342.730(1)(b). Whittaker v. Sherrill, 2002 Ky. App. LEXIS 219 (Ky. Ct. App. Feb. 15, 2002), aff'd, 2003 Ky. Unpub. LEXIS 51 (Ky. Jan. 23, 2003).

KRS 342.730(1)(c)1 must be given preference when KRS 342.730(1)(c)1 and KRS 342.730(1)(c)2 are equally applicable. Ky. River Enters. v. Elkins, 2002 Ky. App. LEXIS 1342 (Ky. Ct. App. June 28, 2002), aff'd in part and rev'd in part, 107 S.W.3d 206, 2003 Ky. LEXIS 147 ( Ky. 2003 ).

Since the administrative law judge determined that a workers’ compensation claimant’s neck injury solely caused the claimant’s total and permanent occupational disability, the employer was not entitled to a credit representing an award for a later back injury. Thomas Heavy Hauling v. Powell, 2003 Ky. App. Unpub. LEXIS 309 (Ky. Ct. App. May 23, 2003).

Kentucky Workers’ Compensation Board erred in applying res judicata to reverse an administrative law judge’s calculation of the credit an employer was entitled to for the overlapping of benefits previously paid to a workers’ compensation claimant for his prior neck injury as there was no evidence that the extent of the claimant’s neck injury was actually litigated before a different administrative law judge, and even if the issue was fully litigated before that administrative law judge, the employer was never a party to the claimant’s previous workers’ compensation action. Thomas Heavy Hauling v. Powell, 2003 Ky. App. Unpub. LEXIS 309 (Ky. Ct. App. May 23, 2003).

Administrative law judge (ALJ) improperly tripled a workers' compensation claimant's weekly benefit under KRS 342.730(1)(c)1 without determining whether the claimant was able to earn an average weekly wage that equaled or exceeded his average weekly wage at the time of his injury; if so, the ALJ had to determine whether the claimant was likely to be able to continue earning such a wage for the indefinite future and whether the application of KRS 342.730(1)(c)1 or 2 was more appropriate on the facts. Ky. River Enters. v. Elkins, 107 S.W.3d 206, 2003 Ky. LEXIS 147 ( Ky. 2003 ).

Where an employee did not have the physical capacity to perform the job as it existed at the time of an injury, the 1.5 multiplier of former KRS 342.730(1)(c)1 (which was in effect at the time of the injury) was properly applied to enhance the employee’s partial disability benefits. Ford Motor Co. v. Lynn, 2003 Ky. App. LEXIS 311 (Ky. Ct. App. Dec. 12, 2003).

Subsection (1)(c)2. of KRS 342.730 does not modify the application of subsection (1)(c)1. The Legislature did not preface subsection (1)(c)2. with the word “however”or otherwise indicate that one provision takes precedence over the other. Therefore, an administrative law judge is authorized to determine which provision is more appropriate on the facts. If the evidence indicates that a worker is unlikely to be able to continue earning a wage that equals or exceeds the wage at the time of injury for the indefinite future, the application of subsection (1)(c)1. is appropriate. Fawbush v. Gwinn, 103 S.W.3d 5, 2003 Ky. LEXIS 81 ( Ky. 2003 ).

Decision to apply subsection (1)(c)1. of KRS 342.730 was reasonable where the claimant’s lack of the physical capacity to return to the type of work that he performed for prior employer was undisputed and, although claimant was able to earn more money than at the time of his injury, his unrebutted testimony indicated that the post-injury work was done out of necessity, was outside his medical restrictions, and was possible only when he took more narcotic pain medication than prescribed. It was apparent, therefore, that he was not likely to be able to maintain the employment indefinitely. Fawbush v. Gwinn, 103 S.W.3d 5, 2003 Ky. LEXIS 81 ( Ky. 2003 ).

The administrative law judge did not err in determining that the claimant was entitled to permanent partial disability benefits under KRS 342.730(1)(c)2 and not under KRS 342.730(1)(c)1 based on the claimant’s relative youth, education, and ability to learn and train for a position within his medical restrictions, and further based on the medical findings that the claimant could perform medium duty work and the evidence of the claimant’s symptom magnification. Adams v. NHC Healthcare, 199 S.W.3d 163, 2006 Ky. LEXIS 201 ( Ky. 2006 ).

Pursuant to KRS 342.730(1)(c)1, while a claimant retained the physical capacity to perform his duties as a mold technician, since the claimant also worked overtime for the same employer as an assembler and thus earned a higher wage, the claimant was entitled to have the Administrative Law Judge consider the claimant’s physical capacity to perform his duties as an assembler. Miller v. Square D Co., 254 S.W.3d 810, 2008 Ky. LEXIS 108 ( Ky. 2008 ).

To the extent that an employee received a profit-sharing as part of a union agreement during years when an employer had a profit, in lieu of wages, the employee’s actual hourly wage could not be considered as fixed, and the average weekly wage of the employee needed to be determined under KRS 342.140 based on the usual wage of employees who performed similar work. Based on the calculation, the employee was entitled to a benefit award under KRS 342.730(1)(c)Pendygraft v. Ford Motor Co., 260 S.W.3d 788, 2008 Ky. LEXIS 174 ( Ky. 2008 ).

KRS 342.730(1)(b)-(d) entitled a partially disabled employee to permanent income benefits from the date the permanent impairment or disability compensated arose; the claim had to be remanded for an entry of an award that began on the date of the employee’s injury as her permanent impairment and disability of fifty percent or less arose on that date. Sweasy v. Wal-Mart Stores, Inc., 295 S.W.3d 835, 2009 Ky. LEXIS 241 ( Ky. 2009 ).

Post-1996 versions of KRS 342.730 (1)(b)-(e) and KRS 342.120 do not require “compensation” for nonwork-related disability to be excluded from an award; they prohibit “impairment” from a nonwork-related disability from being considered when selecting the permanent impairment rating caused by an injury, when calculating the disability rating and permanent partial disability benefit, and when determining the duration of the benefit. Therefore, permanent partial disability benefit was improperly calculated in a workers’ compensation case where a benefits claimant had a prior lumbar surgery before a work-related injury necessitated a second lumbar surgery because KRS 342.730 prohibited impairment from nonwork-related disabilities to be considered when determining not only the extent of a worker’s disability, but also whether the benefits would have been extended. Tudor v. Indus. Mold & Mach. Co., 375 S.W.3d 63, 2012 Ky. LEXIS 120 ( Ky. 2012 ).

Administrative law judge and Workers’ Compensation Board did not err in holding that the statutory 3.0 multiplier under KRS 342.730(1)(c) could be awarded on reopening where the employee sustained an increased impairment rating, and no longer retained the capacity to perform the work he had been performing at the time of the original injury; the 1% disability rating assessed at the time of settlement was the most credible. Rock Drilling, Inc. v. Howell, 2012 Ky. App. LEXIS 159 (Ky. Ct. App. Aug. 24, 2012), aff'd, 2013 Ky. Unpub. LEXIS 50 (Ky. Aug. 29, 2013).

Although an ALJ made no error in his assessment of the evidence to find that a claimant lacked the physical capacity to perform the full range of her duties as a residential associate for the employer due to her work-related injury, he misapplied the law to his findings where, as a matter of law, there was no meaningful difference between the claimant’s situation and the situation in which a claimant who lacked the physical capacity to return to their pre-injury employment decided not to return to work at all. Thus, the claimant was entitled to an award enhanced by the triple multiplier pursuant to Ky. Rev. Stat. Ann. § 342.730(1)(c)1. Morgan v. Bluegrass Oakwood, Inc., 2019 Ky. App. LEXIS 124 (Ky. Ct. App. July 26, 2019).

“Could” is not the standard for enhancing benefits under the double multiplier set forth in Ky. Rev. Stat. Ann. § 342.730(1)(c)2. Morgan v. Bluegrass Oakwood, Inc., 2019 Ky. App. LEXIS 124 (Ky. Ct. App. July 26, 2019).

43. — — Life Expectancy.

Workers’ Compensation Board committed reversible error by utilizing claimant’s actual life span, known at the time of the hearing, rather than claimant’s life expectancy, in awarding survivor’s benefits to widow for the purpose of occupation disease award. Williamson v. Island Creek Coal Co., 899 S.W.2d 499, 1995 Ky. App. LEXIS 94 (Ky. Ct. App. 1995).

44. — Schedule.

The schedule of benefits for specified injuries, though intended in the beginning to be exclusive, has become merely a minimum. Blair v. General Electric Co., 565 S.W.2d 631, 1978 Ky. LEXIS 357 ( Ky. 1978 ).

In coal workers’ pneumoconiosis cases where the worker’s last injurious exposure occurred on and after January 1, 1973, benefits payable to the surviving spouse of that worker are required to be computed pursuant to the statutes which existed prior to the enactment of the 1972 amendments to the Workers’ Compensation Act, rather than pursuant to the more favorable provisions of the present law. Yocom v. Dotson, 607 S.W.2d 121, 1980 Ky. App. LEXIS 372 (Ky. Ct. App. 1980).

Where claimant has an injury to or suffers loss of a member of the body and the extent of the injury brings him within the provisions of former subsection (1)(c)(27) of this section in order that his benefits not be limited to the schedule therein all that is necessary is that a showing be made that the injury adversely affects the claimant’s ability to labor or his occupational opportunities. Jones v. Institute of Electronic Technology, 613 S.W.2d 420, 1981 Ky. LEXIS 227 ( Ky. 1981 ) (decision prior to the 1980 amendment).

Where claimant suffered work-related injury which resulted in amputation of portion of distal phalange of his ring and little fingers on right hand and was unable to obtain kind of work he was customarily able to do, he was entitled to have workers’ compensation board make a finding as to whether former subsection (1)(c)(27) of this section applied so as to entitle him to compensation beyond benefits payable under the schedule in former subsection (1)(c) of this section. Jones v. Institute of Electronic Technology, 613 S.W.2d 420, 1981 Ky. LEXIS 227 ( Ky. 1981 ) (decision prior to 1980 amendment).

During any period of cessation of employment, whether temporary or permanent, and for whatever reason, with or without cause, a claimant would be paid a full weekly benefit for his permanent partial disability at the rate prescribed in subsection (1)(b). Ball v. Big Elk Creek Coal Co., 1999 Ky. App. LEXIS 143 (Ky. Ct. App. Nov. 19, 1999), aff'd, 25 S.W.3d 115, 2000 Ky. LEXIS 94 ( Ky. 2000 ).

45. —“Tier-down” Reductions.

Since those benefits that accrue after a worker outlives his projected life expectancy are the sole liability of the Special Fund, the Special Fund becomes entitled to the full benefit of the “tier-down” provisions of subsection (4) at that time. Leeco, Inc. v. Crabtree, 966 S.W.2d 951, 1998 Ky. LEXIS 49 ( Ky. 1998 ).

Employer and Special Fund are entitled to share proportionally in whatever benefit reduction occurs during the period between age 65 and the end of claimant’s projected life expectancy. Leeco, Inc. v. Smith, 970 S.W.2d 337, 1998 Ky. LEXIS 102 ( Ky. 1998 ).

Ky. Rev. Stat. Ann. § 342.730(4) (2018) did not apply retroactively where the language that would have made it retroactive was not included in the adopted version, and there was no reason that a statutory amendment impacting the duration of a worker’s benefits was not subject to the principle that the law on the date of injury controlled. Because the version of § 342.780(4) in effect on the injury date was unconstitutional, the duration of the claimant’s benefits was controlled by Ky. Rev. Stat. Ann. § 342.730(1)(d). Lafarge Holcim v. Swinford, 2018 Ky. App. LEXIS 235 (Ky. Ct. App. Sept. 7, 2018), aff'd in part and rev'd in part, 581 S.W.3d 37, 2019 Ky. LEXIS 340 ( Ky. 2019 ).

46. — — Remand.

The decision to remand under KRS 342.285(4) (now KRS 342.285(3)) lies within the sound discretion of the trial court, and the reviewing court may reverse the trial court’s decision to remand only upon a finding that such action constituted an abuse of discretion; thus, where the basis for the trial court’s order remanding the claim to the Workers’ Compensation Board was due to its inability to determine whether the Board had relied upon the applicable law in formulating its original award, inasmuch as the formula for the computation of disability benefits contained in this section underwent significant revision since the time of the claimant’s injury, the trial court did not abuse its discretion. Wells v. Craddock, 683 S.W.2d 639, 1985 Ky. App. LEXIS 506 (Ky. Ct. App. 1985).

47. — Limitations.

Once a determination has been made, the amount of compensation is automatically fixed by this section and neither the board nor the courts are authorized to increase or reduce the amount. Knott Coal Corp. v. Kelly, 313 Ky. 562 , 232 S.W.2d 994, 1949 Ky. LEXIS 1271 ( Ky. 1949 ) (decided under prior law).

Compensation for partial permanent injury to a member cannot exceed the amount allowable for the loss of the member. Department of Mines & Minerals v. Castle, 240 S.W.2d 44, 1951 Ky. LEXIS 936 ( Ky. 1951 ) (decided under prior law).

Where an injury, as distinguished from the disability, is limited to the member, the board is required to limit an award for permanent partial disability to an amount which is not in excess of the compensation allowable for the loss of the member. Caney Creek Mining Co. v. Rager, 264 S.W.2d 677, 1954 Ky. LEXIS 690 ( Ky. 1954 ) (decided under prior law).

The minimum workers’ compensation limitation on weekly income benefits applies not only to cases of total disability but also to benefits to be paid for partial disability. Apache Coal Co. v. Fuller, 541 S.W.2d 933, 1976 Ky. LEXIS 28 ( Ky. 1976 ).

The decision in Apache Coal Co. v. Fuller, 541 S.W.2d 933, 1976 Ky. LEXIS 28 ( Ky. 1976 ) is applicable to claims arising prior to January 1, 1977, the effective date of amended subsection (1)(b) of this section, and not finally decided prior to November 12, 1976, the date of denial for rehearing of Apache. Keefe v. O. K. Precision Tool & Die Co., 566 S.W.2d 804, 1978 Ky. App. LEXIS 535 (Ky. Ct. App. 1978).

The claimant’s rights to specific compensation for disability were fixed by subsection (1)(b) of this section, as it read prior to the 1982 amendment, when it contained a limitation on the maximum period of 425 weeks, to the extent that benefits would not be paid after the employee became eligible for normal old age benefits under the Federal Old Age, Survivors and Disability Insurance Act; thus, the claimant’s benefits terminated at such time as he became eligible for benefits under the federal act. Furthermore, any action by the United States Congress to increase the retirement age will not act as an amendment to subsection (1)(b) of this section, but will simply serve to lengthen the time by which the claimant’s benefits are calculated and may be received. Stovall v. Pfeffer, 684 S.W.2d 1, 1984 Ky. App. LEXIS 549 (Ky. Ct. App. 1984) (decision under section prior to 1982 amendment).

A claimant who was 100% occupationally disabled due to coal workers’ pneumoconiosis and 20% occupationally disabled due to an injury was limited to receiving benefits from the combined awards equal to 662/3% of his average weekly wage, so long as that amount did not exceed the state average weekly wage. Matney v. Newberg, 849 S.W.2d 526, 1992 Ky. LEXIS 197 ( Ky. 1992 ).

A worker may not receive a concurrent income benefit and retraining incentive benefit, pursuant to subdivision (1)(a) of this section and KRS 342.732(1)(a), that exceeds the maximum benefit for permanent total occupational disability as set forth in subdivision (1)(a) of this section. McCoy Elkhorn Coal Corp. v. Sullivan, 862 S.W.2d 891, 1993 Ky. LEXIS 134 ( Ky. 1993 ).

The identity of the beneficiary is determined at the death of the worker, however benefits are governed by the law in effect on the date of the last exposure. Newberg v. Davis, 867 S.W.2d 193, 1993 Ky. LEXIS 173 ( Ky. 1993 ).

KRS 342.165 imposes a monetary penalty for certain safety violations and penalizes employer misconduct with a 15% increase in each payment of compensation for which the employer would otherwise have been liable, and as such the penalty clearly is not an income benefit and presents no conflict with the limitation on income benefits contained in this section. Apex Mining v. Blankenship, 918 S.W.2d 225, 1996 Ky. LEXIS 19 ( Ky. 1996 ).

The workers’ compensation benefit paid to the child of the deceased could not be used to offset the statutory exemption that entitles the spouse or child to a certain amount of the decedent’s property, because insurance policy benefits payable directly to a beneficiary do not become part of the decedent’s estate. Crittendon v. Saxon, 32 S.W.3d 500, 1999 Ky. App. LEXIS 140 (Ky. Ct. App. 1999).

Although the workers’ compensation claimant was able to return to work in the same collective bargaining agreement classification as before the injury, this was not determinative as to whether the claimant performed the same type of work as before the injuries, which would have disqualified the claimant for benefits under the former version of KRS 342.730(1)(c)1. applicable at the time of this case; because the classification contained many different types of work, the claimant may have performed a different type of work despite being in the same category as before. Ford Motor Co. v. Forman, 142 S.W.3d 141, 2004 Ky. LEXIS 176 ( Ky. 2004 ).

48. — Commutation of Future Benefits.

Future benefits payable pursuant to a worker’s compensation award to continue during disability may be commuted to a lump sum for the purpose of the payment of the fee of the attorney for the claimant or other benefit of the claimant without violating either the United States or Kentucky Constitutions. Livingston County Farm Supply, Inc. v. Spencer, 593 S.W.2d 76, 1979 Ky. LEXIS 319 ( Ky. 1979 ).

49. — Retraining Benefits.

At the time claimant filed his original application, retraining incentive benefits (RIB) did not exist and he was compensated via the approved settlement agreement according to the provisions of the Compensation Act applicable at that time; without showing a worsening of his condition while working for a subsequent employer, there was no basis for imposing liability. A legislative enactment does not automatically entitle a previously compensated worker to the provisions of the new legislation, whether that involves new and distinct benefits or not. Moore v. Sunstone Energy, Inc., 849 S.W.2d 529, 1993 Ky. LEXIS 56 ( Ky. 1993 ).

50. — Retroactive.

Where employee returned to work two weeks after injury to eye, and was paid compensation for one week’s temporary disability, and several months later glaucoma developed requiring removal of eye, award of board based on loss of eye could be made retroactive to first day of second week following injury, giving credit for sum already paid. Glogora Coal Co. v. Boyd, 293 Ky. 610 , 169 S.W.2d 816, 1943 Ky. LEXIS 672 ( Ky. 1943 ), overruled, Carnahan v. Yocom, 526 S.W.2d 301, 1975 Ky. LEXIS 96 ( Ky. 1975 ), overruled in part, Carnahan v. Yocom, 526 S.W.2d 301, 1975 Ky. LEXIS 96 ( Ky. 1975 ), overruled on other grounds, Carnahan v. Yocom, 526 S.W.2d 301, 1975 Ky. LEXIS 96 (Ky. 1975) (decided under prior law).

51. —Credit to Employer.

The employee is entitled to the compensation fixed and the employer cannot credit against the compensation award, wages paid the employee in his employment subsequent to the injury, even though employee is employed in same job and at same wage as before accident. Atlas Coal Co. v. Moore, 298 Ky. 767 , 184 S.W.2d 76, 1944 Ky. LEXIS 990 ( Ky. 1944 ) (decided under prior law).

Where an employer’s disability plan did not cover disability for an injury or sickness due to employment with any employer, it was not the type of plan for which KRS 342.730(6) provided an offset; the employer was not entitled to a credit for short term disability paid to a worker against workers’ compensation benefits awarded to the worker. Dravo Lime Co. v. Eakins, 156 S.W.3d 283, 2005 Ky. LEXIS 48 ( Ky. 2005 ).

Where a claimant was awarded permanent total disability benefits, an employer was not entitled to credit for post-injury wages, because the claimant’s wages were “bona fide” since they were paid ostensibly for labor and the evidence did not permit a reasonable finding that the employer intended to pay them in lieu of workers’ compensation benefits. Millersburg Military Inst. v. Puckett, 260 S.W.3d 339, 2008 Ky. LEXIS 102 ( Ky. 2008 ).

In order to avoid a duplication of the payment of benefits for a work injury, the injured employee’s employer should receive credit for the amount the employee was paid under the retirement plan above what his early retirement benefits would have been had he not chosen the disability retirement benefit. Alcan Aluminum Corp. v. Stone, 2008 Ky. App. LEXIS 31 (Ky. Ct. App. Feb. 8, 2008), aff'd, 276 S.W.3d 817, 2009 Ky. LEXIS 12 ( Ky. 2009 ).

Employer was not entitled to dollar for dollar credit under KRS 342.730(6) for payments under an employee benefit plan against payments for workers’ compensation benefits for a temporary total disability because the benefit plan was negotiated through the collective bargaining process and could not be said to be exclusively employer-funded. UPS Airlines v. West, 2011 Ky. App. LEXIS 76 (Ky. Ct. App. Apr. 22, 2011), aff'd in part and rev'd in part, 366 S.W.3d 472, 2012 Ky. LEXIS 62 ( Ky. 2012 ).

Employer was entitled to credit its liability for past due or future income benefits only to the extent that those benefits duplicated or overlapped workers’ compensation benefits because KRS 342.730(6) did not entitle the employer to credit the overpayment of voluntary benefits against future income benefits; the Loss of License benefit to which the parties agreed exceeded the claimant’s benefit under KRS 342.730(1) during the weeks that they overlapped. Having failed to credit the private benefits when making temporary total disability (TTD) payments, the employer was entitled to credit the overpayment of TTD against past-due benefits, if any, but was not entitled to take credit against future disability benefits. UPS Airlines v. West, 366 S.W.3d 472, 2012 Ky. LEXIS 62 ( Ky. 2012 ).

52. —Denial of Benefits.

Volunteer firefighter, who had been laid off from his mechanic job, had no regular income or employment at the time of the accident, and the court affirmed the finding that the firefighter had no average weekly wage at the time of injury and he was not entitled to an award of permanent disability benefits; his arguments required the court to read language into the statute that was not there, and the statute did not include a “looking back” provision in terms of employment that was present in other statutory sections. Justice v. Kimper Volunteer Fire Dep't, 379 S.W.3d 804, 2012 Ky. App. LEXIS 171 (Ky. Ct. App. 2012).

Administrative Law Judge’s (ALJ) finding that an employee’s knee injury was not work-related and, therefore, not compensable was supported by substantial evidence because the ALJ found his testimony about the cause of his knee injury not to be credible; the employee’s initial treatment records for the first three months following his work incident did not mention a left knee injury or any left knee complaints. Wilkerson v. Kimball Int'l, Inc., 585 S.W.3d 231, 2019 Ky. LEXIS 373 ( Ky. 2019 ).

Administrative Law Judge’s (ALJ) conclusion that an employee’s back surgeries were not work-related was supported by substantial evidence because the surgeon’s testimony indicated the employee’s back condition was due to his surgeries and not his work injury. Wilkerson v. Kimball Int'l, Inc., 585 S.W.3d 231, 2019 Ky. LEXIS 373 ( Ky. 2019 ).

53. — — Refusal of Job Offer.

Where the claimant fractured his leg and was unable to perform his former job but was offered another job by his employer at the same rate of pay, which he refused, the claimant was not permanently and totally disabled within the meaning of the Workers' Compensation Law. Muncy v. Peoples Rural Tel. Co. Cooperative, 432 S.W.2d 409, 1968 Ky. LEXIS 330 ( Ky. 1968 ) (decided under prior law).

54. Award.

Disability is defined and paid for on the loss of earning capacity theory with a provision for entitlement to compensation based on actual wage loss theory, whichever provides higher benefits. Apache Coal Co. v. Fuller, 541 S.W.2d 933, 1976 Ky. LEXIS 28 ( Ky. 1976 ).

Dependent widow of minor who had filed a valid disability claim during his lifetime but died from unrelated causes is entitled to his workers’ compensation award. Yocom v. Chapman, 542 S.W.2d 510, 1976 Ky. LEXIS 26 ( Ky. 1976 ).

An award for permanent partial disability benefits under the Workers’ Compensation Act is designed to approximate the dollar value of the estimated impairment of the employee’s earning capacity based upon his earnings at the time of the accident, the nature and extent of his injury, his subsequent earnings, his age, skills and physical capacity. Keefe v. O. K. Precision Tool & Die Co., 566 S.W.2d 804, 1978 Ky. App. LEXIS 535 (Ky. Ct. App. 1978).

The employer and the special fund are each required to pay a share of the whole award based upon the ratio that their assigned percentages of disability bear to each other, whether or not the two partial awards are rendered simultaneously or at different times. Ridgeway Coal Co. v. Church, 717 S.W.2d 510, 1986 Ky. App. LEXIS 1389 (Ky. Ct. App. 1986).

Where claimant’s injury award was for total, not partial, disability, the claimant was not additionally entitled to lifetime benefits for occupational disease. Where a worker is disabled by a combination of injury and occupational disease, the injury award takes precedence over the occupational disease award. Newberg v. Hammond, 841 S.W.2d 179, 1992 Ky. LEXIS 168 ( Ky. 1992 ).

December 12, 1996 amendment to KRS 342.125(1) does not govern the type of evidence necessary to establish the right to greater benefits under KRS 342.730 with respect to a reopened claim, but changes only a procedural requirement, i.e., one of the grounds upon which a motion to reopen may be granted; in other words, under KRS 342.0015 , KRS 342.125(1)(d) addresses the necessary prima facie showing in order to prevail on a motion to reopen that is filed on or after December 12, 1996, but has no effect on the substantive proof requirements for a claim that arose before its effective date. Dingo Coal Co. v. Tolliver, 129 S.W.3d 367, 2004 Ky. LEXIS 75 ( Ky. 2004 ).

Administrative law judge (ALJ) properly awarded a workers’ compensation claimant benefits under KRS 342.730(1)(a) as the ALJ’s finding that a workers’ compensation claimant’s trigeminal neuralgia was work-related was based on an expert’s testimony, which was properly admitted under Daubert and KRE 702 where: (1) this was the first known case of trigeminal neuralgia deemed caused by exposure to toxic gas, (2) other experts disagreed, (3) the expert used sound scientific methodology in reaching his conclusions, including a review of diagnostic testing, the elimination of other potential causes, and the timing of the onset of the condition, and (4) the ALJ clearly conducted the required Daubert analysis. City of Owensboro v. Adams, 136 S.W.3d 446, 2004 Ky. LEXIS 141 ( Ky. 2004 ).

ALJ determined at reopening that the present impairments from the employee’s peroneal nerve condition and knee condition combined to render him unable to work as a truck driver; thus, KRS 342.730(1) entitled him to receive from the date of his motion to reopen through the end of the compensable period a triple partial disability benefit that was based on all of the impairment resulting from his 2003 injury. James T. English Trucking v. Beeler, 375 S.W.3d 67, 2012 Ky. LEXIS 125 ( Ky. 2012 ).

55. —Correction.

Kentucky Workers' Compensation Board rightfully found that a claimant was not entitled to an award of certain medical expenses because the claimant did not identify in the benefit review conference order unpaid or contested medical expenses as a contested issue for the administrative law judge to resolve at the formal hearing, but nonetheless raised and presented proof of the disputed medical bills at the hearing. Moreover, the claimant made no mention of the bills until re-direct examination, but not during the claimant's direct examination. Roach v. Owensboro Health Reg'l Hosp., 518 S.W.3d 786, 2017 Ky. App. LEXIS 67 (Ky. Ct. App. 2017).

The Board has the authority to correct an award previously given for total disability to raise the period of payment to that required by this section. Black Mountain Corp. v. Gilbert, 296 Ky. 514 , 177 S.W.2d 894, 1944 Ky. LEXIS 584 ( Ky. 1944 ), overruled in part, E. & L. Transport Co. v. Hayes, 341 S.W.2d 240, 1960 Ky. LEXIS 70 , 84 A.L.R.2d 1102 ( Ky. 1960 ) (decided under prior law).

56. — Apportionment.

When the disability results only partly from the accident, the award should be apportioned. Wolverine Coal Co. v. Clem, 248 Ky. 7 , 57 S.W.2d 1012, 1933 Ky. LEXIS 169 ( Ky. 1933 ) (decided under prior law).

In determining how the amount due for whole disability should be apportioned between the employer and the special fund, the employer and the special fund should each be required to pay a share of the whole award based upon the ratio that their assigned percentages of disability bear to each other. River Coal Co. v. Mullins, 594 S.W.2d 875, 1979 Ky. LEXIS 320 ( Ky. 1979 ).

Where employee incurred 50% permanent occupational disability caused by back injury and its arousal of a preexisting condition, and 50% permanent occupational disability due to pneumoconiosis, under law obtained in 1981, the employer and the Special Fund were required to pay a share of his whole award based on the ratio that their assigned percentages of disability bore to each other. Sovereign Coal Corp. v. Adkins, 690 S.W.2d 129, 1985 Ky. App. LEXIS 521 (Ky. Ct. App. 1985).

For formula for computing apportionment of award when an employee is totally and permanently disabled by a combination of an injury and an occupational disease, see Beale v. Shepherd, 809 S.W.2d 845, 1991 Ky. LEXIS 20 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 91 (Ky. July 3, 1991).

A claimant was determined to be totally, occupationally disabled, but only 30% of the disability was caused by the subject injury; therefore, the award was computed as 30% of a permanent, total disability and claimant was awarded the maximum benefit set forth in this section to which he was entitled. Arch of Kentucky, Inc. v. Halcomb, 925 S.W.2d 460, 1996 Ky. LEXIS 69 ( Ky. 1996 ).

To the extent that permanent, partial disability benefits paid pursuant to claimant’s 1986 back injury award overlapped the later period of total disability which resulted from his 1990 back injury, the earlier award offset the liability of the 1990 insurer and of the Special Fund for those benefits which would otherwise have been due pursuant to the total disability award. Spurlin v. Brooks, 952 S.W.2d 687, 1997 Ky. LEXIS 49 ( Ky. 1997 ).

Workers’ Compensation claimant, who suffered an injury rendering him permanently, occupationally disabled during the period of a prior compensable injury, is entitled to an award pursuant to this section, as of the date of the injury, for the amount of disability which is not excluded as a prior, active condition. Fleming v. Windchy, 953 S.W.2d 604, 1997 Ky. LEXIS 46 ( Ky. 1997 ), amended, 1997 Ky. LEXIS 123 (Ky. Oct. 30, 1997).

Administrative law judge did not err in apportioning some liability to an employer for a workers’ compensation claimant’s permanent total disability as the excess disability cases cited by the employer were inapplicable because the claimant did not become totally disabled until after his later back injury, but it was the worsening of the claimant’s prior neck injury that was ultimately responsible for rendering the claimant totally and permanently disabled; the subsequent worsening of the prior neck injury, not the effects of the later back injury, constituted the claimant’s last work-related traumatic event for purposes of determining apportionment and liability. Thomas Heavy Hauling v. Powell, 2003 Ky. App. Unpub. LEXIS 309 (Ky. Ct. App. May 23, 2003).

57. — Duration.

There was no merit to the employer’s argument that the legislature intended for an occupational disability award to last only as long as the claimant’s life expectancy. Custom and usage of the Workers’ Compensation Act have incontrovertibly established that an award for “so long as the claimant is disabled” means that the award is for the claimant’s occupational life and that occupational life is synonymous with physical life; one has the potential to earn wages for as long as he breathes. Stovall v. Williams, 675 S.W.2d 6, 1984 Ky. App. LEXIS 570 (Ky. Ct. App. 1984).

Where the Workers’ Compensation Board found the claimant to be totally disabled, it properly ordered the income benefits to be paid for so long as she was disabled. Teledyne-Wirz v. Willhite, 710 S.W.2d 858, 1986 Ky. App. LEXIS 1039 (Ky. Ct. App. 1986).

A workers’ compensation award for permanent partial disability should continue for 425 weeks, even when a subsequent injury independently results in another disability award. Palmore v. Peabody Coal Co., 818 S.W.2d 622, 1991 Ky. App. LEXIS 134 (Ky. Ct. App. 1991).

Subsection (1)(b) of this section prior to the 1996 (1st Ex. Sess.) amendment required that permanent, partial disability payments be made for 425 weeks from the date of the disability, that a period of temporary total disability shall extend the 425-week period, and that no weekly benefit greater than that for the total disability shall be paid; KRS 342.316(1)(b) requires that payments for income benefits related to pneumoconiosis begin on the date of the last injurious exposure therefore, it was not error to run the occupational disease award concurrently with the 38-week period of temporary, total disability even though this would result in a loss to claimant of 38-weeks’ worth of occupational disability payments because he could not receive more than total disability benefits at a given time. Beale v. Robinson, 822 S.W.2d 856, 1991 Ky. LEXIS 80 ( Ky. 1991 ).

Temporary total disability (TTD) benefits are payable until the medical evidence establishes the recovery process, including any treatment reasonably rendered in an effort to improve the claimant’s condition, is over, or the underlying condition has stabilized such that the claimant is capable of returning to his job, or some other employment, of which he is capable, which is available in the local labor market. W.L. Harper Constr. Co. v. Baker, 858 S.W.2d 202, 1993 Ky. App. LEXIS 87 (Ky. Ct. App. 1993).

Where the date of decedent’s last exposure was December 9, 1989, and although the language of this section was not amended to authorize continuation of awards until 1990, an award of continuation of benefits was properly made to widow pursuant to subsection (3) of this section since the amendment was remedial, and widow’s claim was still pending when the amendment became effective. Newberg v. Davis, 867 S.W.2d 193, 1993 Ky. LEXIS 173 ( Ky. 1993 ).

A worker who the Administrative Law Judge (ALJ) has determined is totally, occupationally disabled by a combination of injury and coal workers’ pneumoconiosis may receive a combined award of lifetime benefits pursuant to this section and KRS 342.732 . Whittaker v. Kennedy, 883 S.W.2d 489, 1994 Ky. LEXIS 84 ( Ky. 1994 ).

KRS 342.730(4) was not unconstitutional and state Supreme Court upheld administrative law judge’s ruling that workers’ compensation benefits awarded to an employee who suffered a permanent total disability would end when the employee reached 65 years of age. McDowell v. Jackson Energy RECC, 84 S.W.3d 71, 2002 Ky. LEXIS 164 ( Ky. 2002 ), overruled, Parker v. Webster Cnty. Coal, LLC, 529 S.W.3d 759, 2017 Ky. LEXIS 199 ( Ky. 2017 ).

Employee’s eligibility for workers’ compensation benefits was not limited under subsection (4) to age 65 or no longer than two (2) years after the employee was injured because, as a retired federal worker, the employee was not entitled to receive social security benefits. Autozone, Inc. v. Brewer, 2002 Ky. App. LEXIS 2339 (Ky. Ct. App. Dec. 20, 2002), aff'd, 127 S.W.3d 653, 2004 Ky. LEXIS 36 ( Ky. 2004 ).

Claimant’s workers’ compensation income benefits were improperly limited in duration pursuant to KRS 342.730(4) based upon the claimant’s eligibility for a federal pension; KRS 342.730(4) could not be relied upon to limit the claimant’s award, as it only limited awards for those who received Social Security retirement benefits under 42 USCS § 301 et seq., for which the claimant had not qualified and was inapplicable to the claimant’s federal pension. Autozone, Inc. v. Brewer, 127 S.W.3d 653, 2004 Ky. LEXIS 36 ( Ky. 2004 ).

58. — Reduction of Award.

The reduction of claimant’s award from lifetime total disability payments to 425 weeks, pursuant to subsection (1)(b), accrued at the date of employer’s motion to reopen the case; the reduction could not be applied retroactively to the date of the changed condition that necessitated the reduction. Whittaker v. Allen, 966 S.W.2d 956, 1998 Ky. LEXIS 53 ( Ky. 1998 ).

Reduction in total disability award based on a claimant’s impairment due to the natural aging process was improper under KRS 342.730(1)(a); impairment is not synonymous with disability and reductions in total disability awards can only be made where a pre-existing disability is present. Roberts Bros. Coal Co. v. Robinson, 113 S.W.3d 181, 2003 Ky. LEXIS 158 ( Ky. 2003 ).

59. — Reopening of Award.

Upon a reopening, partial permanent disability (PPD) benefits may be awarded and made payable retroactively to the date the motion to reopen was filed and continue for period of 425 weeks, rather than the date after temporary total disability (TTD) payments were terminated. Newberg v. Cash, 854 S.W.2d 791, 1993 Ky. App. LEXIS 74 (Ky. Ct. App. 1993).

Workers’ Compensation Board did not err in concluding that an administrative law judge had improperly applied KRS 342.730(1)(c)(1) and (2) in awarding an individual permanent partial disability benefits where the evidence showed that the individual’s subsequent work-related back injury produced no independent impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment and as a result, there was no award of permanent partial disability benefits to modify. Westerfield v. Diversified Health Care, Inc., 2003 Ky. App. LEXIS 217 (Ky. Ct. App. Aug. 29, 2003), aff'd, 2004 Ky. Unpub. LEXIS 180 (Ky. Dec. 16, 2004).

Worker whose injury produces a worsening of impairment may reopen in order to seek temporary total disability benefits (TTD), regardless of whether the previous impairment rose to the level that warranted permanent income benefits or whether the period of any previously-awarded income benefits has expired; this presents no conflict with KRS 342.730(4), which terminates a worker’s entitlement to all income benefits, including TTD, upon a worker’s eligibility for old-age social security retirement. Radco Asbestos Specialists, Inc. v. Lyons, 295 S.W.3d 75, 2009 Ky. LEXIS 187 ( Ky. 2009 ).

60. Reduction of Employer's Liability.

Finding of compensation board that employee who had suffered leg injury was totally and permanently disabled to do hard manual labor was in effect a finding that employee was able to perform work suitable to his physical condition, justifying an award giving employer opportunity to reduce its compensation liability by offering employee work suitable to his condition. Kentucky-Jellico Coal Co. v. Jones, 299 Ky. 69 , 184 S.W.2d 216, 1944 Ky. LEXIS 1014 ( Ky. 1944 ) (decided under prior law).

61. — Total After Partial Disability.

Where award for total disability was made after an award for partial disability, the number of weeks paid for partial disability should be deducted from the award for permanent disability and not merely the amount previously paid. Department of Finance v. Wright, 425 S.W.2d 740, 1968 Ky. LEXIS 434 ( Ky. 1968 ) (decided under prior law).

62. — Partial After Total Disability.

Where employee was totally disabled for almost two years and thereafter he was 75% disabled, permanent partial disability was payable for balance of compensation period. Kentucky Distilleries & Warehouse Co. v. James, 205 Ky. 185 , 265 S.W. 629, 1924 Ky. LEXIS 85 ( Ky. 1924 ) (decided under prior law).

63. — Deduction for Previous Award.

The amount of compensation paid for temporary total disability may not be deducted from amount awarded for a following period of permanent partial disability where allowance for the latter has not reached the maximum. Workmen's Compensation Bd. v. Untied States Coal & Coke Co., 196 Ky. 833 , 245 S.W. 900, 1922 Ky. LEXIS 605 ( Ky. 1922 ) (decided under prior law).

Where injured employee was awarded permanent partial disability in addition to a period of temporary total disability, and the injury was not the loss of a member, the employer was not entitled to deduct the latter from the former. Hawley-McIsaacs Coal Co. v. Grant, 235 Ky. 650 , 32 S.W.2d 35, 1930 Ky. LEXIS 444 ( Ky. 1930 ) (decided under prior law).

Where it was found that 10% of totally disabled employee’s disability was due to previous injury for which he was compensated, board correctly awarded him total compensation less amount already paid to him for such previous injury. Ajax Coal Co. v. Collins, 269 Ky. 222 , 106 S.W.2d 617, 1937 Ky. LEXIS 567 ( Ky. 1937 ) (decided under prior law).

Employee who had been previously compensated for loss of left eye resulting in 25% disability to the body as a whole and who subsequently suffered injury to his legs which in itself caused 100% total disability to the body as a whole would not have the prior award deducted from the award for the latest injury. International Harvester Co. v. Poff, 331 S.W.2d 712, 1959 Ky. LEXIS 5 ( Ky. 1959 ) (decided under prior law).

64. — Failure to Follow Medical Advice.

It was proper for the board to consider the failure of the claimant to carry out the treatment which his doctor prescribed as bearing on the extent and duration of his occupational disability. South 41 Lumber Co. v. Gibson, 438 S.W.2d 343, 1969 Ky. LEXIS 399 ( Ky. 1969 ) (decided under prior law).

65. — Paid by Other Employees.

Where Workers’ Compensation Board found miner was totally and permanently disabled to perform manual labor, there should be no deduction from his compensation by virtue of his working as check weighman, where he was employed and paid by the miners and there was no effort on the part of the company to furnish him any form of employment. Columbus Mining Co. v. Sanders, 289 Ky. 438 , 159 S.W.2d 14, 1942 Ky. LEXIS 579 ( Ky. 1942 ) (decided under prior law).

66. Death of Claimant.

The statutory language and the practical purposes of a retraining incentive benefits award make it clear that such award shall not be continued after claimant’s death. Stephens v. Denairo Mining Co., 833 S.W.2d 383, 1992 Ky. LEXIS 102 ( Ky. 1992 ).

Survivors of a deceased worker who was receiving temporary total disability benefits at the time of his death from an unrelated cause may be entitled to recover benefits for the life expectancy of the deceased worker if they can prove that decedent’s work-related condition would not have improved. Robinson v. Newberg, 849 S.W.2d 532, 1993 Ky. LEXIS 53 ( Ky. 1993 ).

Subsection (3) of this section authorized the continuation of disability benefits to dependents of a deceased worker who died from causes unrelated to employment when the award was for total disability and was to be paid during such disability. Advance Aluminum Co. v. Leslie, 869 S.W.2d 39, 1994 Ky. LEXIS 12 ( Ky. 1994 ).

In the absence of a specific provision within Chapter 342 regarding the revival of workers’ compensation actions after the injured worker’s death and in view of the precedent for limiting the period during which a surviving dependent’s claim could be filed the general law regarding the abatement, survival, and revival of actions should apply to workers’ compensation cases. Hammons v. Tremco, Inc., 887 S.W.2d 336, 1994 Ky. LEXIS 128 ( Ky. 1994 ).

67. — Prior to Compensation.

Since compensation is to be paid to dependents under subsection (4) (now (3)) of this section “for the period specified in this section” and that time is “during such disability,” such disability ceases with death, and so also do the benefits. Silvers v. Marley Co., 566 S.W.2d 767, 1978 Ky. App. LEXIS 525 (Ky. Ct. App. 1978).

Where a disabled claimant died from nonwork-related causes prior to determination of his claim, the Board had no authority under this section to order the continuation of permanent disability benefits to his dependents for the life expectancy of the decedent. Silvers v. Marley Co., 566 S.W.2d 767, 1978 Ky. App. LEXIS 525 (Ky. Ct. App. 1978).

68. — Retraining Benefit.

Neither the present nor the pre-1990 version of this section, authorized either the award or the continuation of a retraining incentive benefit to a worker’s survivors. Tackett v. Bethenergy Mines, Inc., 841 S.W.2d 177, 1992 Ky. LEXIS 174 ( Ky. 1992 ).

69. Dependency.

In the determination of dependency under former subsection (1)(b) of this section, the criteria for establishing dependency in the case of a deceased employee are applicable. Purex Corporation/Ferry-Morse Seed Co. v. Bryant, 590 S.W.2d 334, 1979 Ky. App. LEXIS 483 (Ky. Ct. App. 1979).

Benefits are payable to dependents where an injured employee has filed a valid claim during his lifetime but subsequently dies from causes other than the injury. Amburgey v. Daniel Constr. Co., 592 S.W.2d 141, 1979 Ky. LEXIS 316 ( Ky. 1979 ).

With respect to death benefits for widows, widowers, and children, the provisions of KRS 342.075 were superseded by the enactment of KRS 342.750 and this section; thus, a widower is entitled to benefits under KRS 342.750 (1)(a) or (b) regardless of dependency. Brusman v. Newport Steel Corp., 17 S.W.3d 514, 2000 Ky. LEXIS 59 ( Ky. 2000 ).

70. Marriage Following Award of Benefits.

The wife of a disabled worker was entitled to a continuation of her deceased husband’s disability benefits which were awarded prior to the marriage, given her circumstances, as subsection (3) of this section provides for such. Palmore v. Jones, 774 S.W.2d 434, 1989 Ky. LEXIS 32 ( Ky. 1989 ).

71. Widow.

A “widow” maintains her status of “widowhood” only for so long as she remains unmarried for purposes of receiving benefits pursuant to this section. Plummer v. Sharondale Coal Corp., 834 S.W.2d 708, 1992 Ky. App. LEXIS 179 (Ky. Ct. App. 1992).

The widow of a recipient of a workers’ compensation award is not entitled to the continued payment of benefits after the nonwork-related death of her spouse if she remarries. Layne v. Newberg, 841 S.W.2d 181, 1992 Ky. LEXIS 176 ( Ky. 1992 ).

The 1987 amendment to subdivision (3)(a) of this section which reduced a surviving spouse’s share from 100 percent to 50 percent of the worker’s award could not be applied to claims which arose before its effective date of October 26, 1987 because it was not remedial legislation and had to be applied prospectively. Federal Materials Co. v. Baker, 885 S.W.2d 704, 1994 Ky. LEXIS 117 ( Ky. 1994 ).

A widow’s workers’ compensation death benefits received as a result of the husband’s fatal work-related injury would not terminate pursuant to KRS 342.730(4) on the date that the husband would have been eligible for Social Security benefits had he lived to age 66. That view considered the widow as a wife, but since the husband was not living, the death benefits terminated on the date the widow qualified for Social Security benefits as the husband’s widow, which was age 60 pursuant to 42 USCS § 402(e). Morsey, Inc. v. Frazier, 245 S.W.3d 757, 2008 Ky. LEXIS 34 ( Ky. 2008 ).

72. AMA Guidelines.

The “guides to the evaluation of permanent impairment,” American Medical Association, 1977 edition, seek to standardize the evaluation of functional impairment to the body as a whole. Based upon the evaluation of the extent of functional impairment by physicians using the guidelines, it still remains the prerogative of the Workers’ Compensation Board to translate the percentage of functional impairment into occupational disability, if any. Cook v. Paducah Recapping Service, 694 S.W.2d 684, 1985 Ky. LEXIS 230 ( Ky. 1985 ).

The option to award benefits for impairment as determined by the American Medical Association guidelines, by the plain wording of the statute, comes into play only when an award is authorized for permanent partial disability, and then only if the percentage of functional impairment is greater than the percentage of occupational disability. Cook v. Paducah Recapping Service, 694 S.W.2d 684, 1985 Ky. LEXIS 230 ( Ky. 1985 ).

Subdivision (1)(b) of this section means that when the claimant has some degree of disability, as defined under KRS 342.620(11) (now 342.0011 (11)), i.e., decrease of wage earning capacity or loss of ability to compete due to his injury, then and only then, is he entitled to the greater of his bodily function impairment under the guidelines or his percentage of disability under KRS 342.620(11) (now 342.0011 (11)). Cook v. Paducah Recapping Service, 694 S.W.2d 684, 1985 Ky. LEXIS 230 ( Ky. 1985 ); Wells v. Morris, 698 S.W.2d 321, 1985 Ky. App. LEXIS 673 (Ky. Ct. App. 1985) (decision prior to 1996 (1st Ex. Sess.) amendment of this section and KRS 342.0011).

The Administrative Law Judge is not simply free to choose any functional impairment rating assigned by physicians unless the specific procedures and directions as contained in the AMA Guidelines are undertaken. Ball v. Big Elk Creek Coal Co., 1999 Ky. App. LEXIS 143 (Ky. Ct. App. Nov. 19, 1999), aff'd, 25 S.W.3d 115, 2000 Ky. LEXIS 94 ( Ky. 2000 ).

Although an American Medical Association Guides rating is not required to calculate an award of income benefits for permanent total disability, a finding of permanent total disability or permanent partial disability requires proof that the employee has a permanent disability rating, and a permanent disability rating requires a permanent impairment rating, which in turn requires evidence of a rating of whole body impairment as determined by the American Medical Association Guides. Shaffer v. Lourdes Hosp., 2000 Ky. App. LEXIS 145 (Ky. Ct. App. Dec. 1, 2000).

Under KRS 342.0011(11)(b), 342.011(35), & 342.730(1)(b), it appears that permanent partial disability is solely a function of the American Medical Association, Guides to the Evaluation of Permanent Impairment, the administrative law judge (ALJ) is required to determine whether a partially disabled worker has any measurable impairment under those guides prior to the subject injury, and if the ALJ so finds, the definitions in the statutes listed above require a finding of a non-compensable preexisting active disability. Westerfield v. Diversified Health Care, Inc., 2003 Ky. App. LEXIS 217 (Ky. Ct. App. Aug. 29, 2003), aff'd, 2004 Ky. Unpub. LEXIS 180 (Ky. Dec. 16, 2004).

Where the “latest available edition” of the American Medical Association Guides was certified after a nurse’s injury but before the nurse’s claim for benefits, the workers’ compensation board did not err in allowing an administrative law judge to reject as lacking in probative value, the opinions based on an earlier edition of the Guides. Jewish Hosp. v. Ray, 131 S.W.3d 760, 2004 Ky. App. LEXIS 63 (Ky. Ct. App. 2004).

Where an administrative law judge’s decision awarding a workers’ compensation claimant a certain disability rating was based on a physician’s testimony that, even though the claimant’s injury technically fell under “Category III” of the American Medical Association’s Guides, the claimant should be classified under “Category IV” of the AMA Guides, substantial evidence did not support the ALJ’s decision, because the physician could only assess a disability rating percentage that was called for under the proper section of the AMA Guides, and his personal antagonism to the AMA Guides was legally irrelevant, under KRS 342.730(1)(b). Jones v. Brasch-Barry Gen. Contrs., 189 S.W.3d 149, 2006 Ky. App. LEXIS 77 (Ky. Ct. App. 2006).

Administrative law judge could not choose to give credence to an opinion of a physician assigning an impairment rating that was not based upon the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides), so a physician’s latitude in the field of workers’ compensation litigation extended only to the assessment of a disability rating percentage within that called for under the appropriate section of the AMA Guides. Jones v. Brasch-Barry Gen. Contrs., 189 S.W.3d 149, 2006 Ky. App. LEXIS 77 (Ky. Ct. App. 2006).

Under Kentucky law, the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides), were an integral tool for assessing a workers’ compensation claimant’s disability rating and monetary award, so, to be useful for the fact-finder, a physician’s opinion had to be grounded in the AMA Guides, meaning that a physician’s personal antagonism toward the AMA Guides was legally irrelevant, and any assessment that disregarded the express terms of the AMA Guides could not constitute substantial evidence to support an award of workers’ compensation benefits. Jones v. Brasch-Barry Gen. Contrs., 189 S.W.3d 149, 2006 Ky. App. LEXIS 77 (Ky. Ct. App. 2006).

A doctor’s testimony relating to diagnosis or causation need not be in strict conformity with the American Medical Association Guides in order to be considered. Simpson v. Franklin Ins. Agency, Inc., 2007 Ky. App. LEXIS 345 (Ky. Ct. App. Sept. 21, 2007), aff'd, 2008 Ky. Unpub. LEXIS 38 (Ky. Nov. 26, 2008).

Because the evidence did not compel an administrative law judge (ALJ) to determine which doctor was more credible, and because the claimant’s impairment was not rated prematurely under the objective criteria in the latest edition of the Guides to the Evaluation of Permanent Impairment, the ALJ properly determined that the claimant was entitled to KRS 342.730(1)(b) benefits. Tokico (USA), Inc. v. Kelly, 281 S.W.3d 771, 2009 Ky. LEXIS 47 ( Ky. 2009 ).

Kentucky Workers’ Compensation Board properly remanded a case to an administrative law judge (ALJ) for further findings relating to a 20% impairment rating under KRS 342.730(1), which was assigned by reference to the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), since a claimant was not using an assistive device. The Board was not requiring the ALJ to perform a medical analysis of the AMA Guides, but rather to support his decision with findings sufficient to ensure that the rating was made in accordance with the AMA Guides. Watkins v. Kobe Aluminum, 2013 Ky. App. LEXIS 70 (Ky. Ct. App. Apr. 19, 2013), aff'd, 2014 Ky. Unpub. LEXIS 60 (Ky. Aug. 21, 2014).

73. Medical Testimony.

Testimony of two competent physicians that an employee 59 years of age who was employed as a loader in a coal mine for a number of years until some two or three years before his injury, which occurred while working as a slate picker, and whose injuries consisted of broken right arm and left shoulder thrown out of place and who could not lift his left arm more than a few inches above his waistline, was totally and permanently disabled for work as a coal miner or slate picker was sufficient evidence to sustain an award of the Workers’ Compensation Board for total permanent disability. Wells Elkhorn Coal Co. v. Vanhoose, 220 Ky. 381 , 295 S.W. 464, 1927 Ky. LEXIS 563 ( Ky. 1927 ) (decided under prior law).

Testimony of injured employee as to disability, contradicted by all medical testimony produced, was not sufficient to support award based on total permanent disability, but was sufficient to support an award for partial disability. James v. Elkhorn Piney Coal Mining Co., 277 Ky. 765 , 127 S.W.2d 823, 1939 Ky. LEXIS 727 ( Ky. 1939 ) (decided under prior law).

Even though doctors all testified injured miner could perform light work, and ought to be active for his improvement, the board could determine total permanent disability on competent proof, rather than partial disability. Black Mountain Corp. v. Thompson, 285 Ky. 306 , 147 S.W.2d 708, 1941 Ky. LEXIS 377 ( Ky. 1941 ) (decided under prior law).

Testimony of physicians, based on information that employee’s tubercular condition had not previously affected his ability to work, that inhalation of sulphur dioxide gas from refrigerator reactivated tubercular condition, was sufficient to support award. Dixie Ice Cream Co. v. Ingels, 291 Ky. 39 , 163 S.W.2d 20, 1942 Ky. LEXIS 168 ( Ky. 1942 ) (decided under prior law).

Where one physician testified that employee was totally and permanently disabled as a result of injury to left leg, another physician testified that employee’s disability was about 40% but that employee was unable to do hard manual labor, and a third physician testified that employee had a 20% disability, award of board allowing full compensation for total permanent disability, subject to credit for the number of weeks during the compensable period that employer furnished the employee employment “suited to his physical condition” at a wage equal to or in excess of maximum compensation, based on a finding that employee was permanently disabled “to perform hard manual labor in a coal mine,” was proper as against contention that award should have been made only for disability to employee’s left leg. Kentucky-Jellico Coal Co. v. Jones, 299 Ky. 69 , 184 S.W.2d 216, 1944 Ky. LEXIS 1014 ( Ky. 1944 ) (decided under prior law).

Award allowing employee compensation only for temporary partial disability resulting from injury to vertebrae would not be disturbed, notwithstanding testimony of three physicians that employee had a disability of from 30% to 50% where two of such physicians would not state that the disability would be permanent, and two physicians called by employer testified that employee had made a complete recovery. Maynard v. Pond Creek Collieries Co., 299 Ky. 157 , 184 S.W.2d 991, 1945 Ky. LEXIS 399 ( Ky. 1945 ) (decided under prior law).

The doctors’ testimony should be addressed to the question of what job requirements the injured man is physically capable of performing (taking into consideration his qualifications and training). Osborne v. Johnson, 432 S.W.2d 800, 1968 Ky. LEXIS 353 ( Ky. 1968 ), limited, Crib Diaper Service v. Standifer, 436 S.W.2d 501, 1969 Ky. LEXIS 477 ( Ky. 1969 ) (decided under prior law).

Where two doctors testified for the claimant and their testimony was consistent except for a difference in percentage of permanent disability, and no doctor testified for the employer, there was not such a divergence of opinion in the medical testimony as to render the Board’s award of the higher percentage excessive. Catalytic Constr. Co. v. Ogburn, 441 S.W.2d 399, 1969 Ky. LEXIS 311 ( Ky. 1969 ) (decided under prior law).

Where the testimony of a doctor that the claimant had silicosis which prevented him from working in the mines was uncontradicted, the evidence in totality was so strong and persuasive that as a matter of law the Board was required to make the claimant an award of total and permanent disability. Young v. Sturgill, 445 S.W.2d 442, 1969 Ky. LEXIS 163 ( Ky. 1969 ) (decided under prior law).

Fact that medical expert, testifying that claimant had about a ten percent disability, was unable to say whether or not the disability would be permanent did not make board’s finding of permanent disability improper; however, finding that disability was 27 percent, based entirely on difference in weekly earnings before and after the injury, was improper, as there was no evidence as to the availability of other jobs. Johnson v. Skilton Constr. Corp., 467 S.W.2d 785, 1971 Ky. LEXIS 409 ( Ky. 1971 ) (decided under prior law).

74. Preservation for Review.

Although the issue of additional temporary total disability (TTD) benefits was not raised at an initial benefit review conference, pursuant to KRS 342.730 , the appropriateness and duration of an employee’s TTD were encompassed within the question of extent and duration; therefore, the issue was preserved and the case was properly remanded for additional findings. UPS v. Stoudemire, 251 S.W.3d 331, 2008 Ky. App. LEXIS 39 (Ky. Ct. App. 2008).

Cited in:

Yocum v. Lester, 544 S.W.2d 234, 1976 Ky. LEXIS 22 ( Ky. 1976 ); Transport Motor Express, Inc. v. Finn, 568 S.W.2d 509, 1977 Ky. App. LEXIS 922 (Ky. Ct. App. 1977); Tolson v. Pratt Bros. Coal Co., 574 S.W.2d 920, 1978 Ky. App. LEXIS 637 (Ky. Ct. App. 1978); Rudd v. Kentucky Mfg. Co., 574 S.W.2d 928, 1978 Ky. App. LEXIS 641 (Ky. Ct. App. 1978); Keathley v. U. S. Shoe Co., 585 S.W.2d 386, 1979 Ky. LEXIS 273 ( Ky. 1979 ); Yocom v. West, 587 S.W.2d 608, 1979 Ky. App. LEXIS 472 (Ky. Ct. App. 1979); Elmendorf Farms v. Goins, 593 S.W.2d 81, 1979 Ky. App. LEXIS 499 (Ky. Ct. App. 1979); Jenkins-Essex Co. v. Dailey, 705 S.W.2d 949, 1986 Ky. App. LEXIS 1087 (Ky. Ct. App. 1986); Ford Motor Co. v. Stewart, 762 S.W.2d 817, 1988 Ky. App. LEXIS 132 (Ky. Ct. App. 1988); Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 1990 Ky. LEXIS 24 ( Ky. 1990 ); Newberg v. Thomas Indus., 852 S.W.2d 339, 1993 Ky. App. LEXIS 59 (Ky. Ct. App. 1993); Chisholm Coal Co. v. Downey, 865 S.W.2d 315, 1993 Ky. LEXIS 164 ( Ky. 1993 ); Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 1994 Ky. LEXIS 6 ( Ky. 1994 ); Birkenshaw v. Union Light, Heat & Power Co., 889 S.W.2d 804, 1994 Ky. LEXIS 143 ( Ky. 1994 ); Realty Improvement Co. v. Raley, 194 S.W.3d 818, 2006 Ky. LEXIS 158 ( Ky. 2006 ); GE v. Turpen, 245 S.W.3d 781, 2006 Ky. App. LEXIS 379 (Ky. Ct. App. 2006); FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 2007 Ky. LEXIS 23 ( Ky. 2007 ); Miller v. Go Hire Empl. Dev., Inc., 2015 Ky. App. LEXIS 143 (Oct. 9, 2015).

Notes to Unpublished Decisions

1. Disabilities.

Unpublished decision: Administrative law judge is authorized to determine which provision — KRS 342.730(1)(c)1 or (c)2 — is more appropriate on the facts; if the evidence indicates that a worker is unlikely to be able to continue earning a wage that equals or exceeds the wage at the time of injury for the indefinite future, the application of KRS 342.730(1)(c)1 is appropriate. Fawbush v. Gwinn, 103 S.W.3d 5, 2003 Ky. LEXIS 81 ( Ky. 2003 ).

2. — Occupational.

Unpublished decision: Where a workers’ compensation claimant filed a motion to reopen a disability award based on an alleged worsening of the claimant’s condition, and there was conflicting medical evidence as to whether the claimant’s occupational disability had increased, the administrative law judge did not act unreasonably in relying on, inter alia, the lack of change in the claimant’s course of treatment and on the opinions of three doctors that the claimant’s condition had not worsened, in concluding that the claimant had failed to meet the claimant’s burden of proving an increase in occupational disability through objective medical evidence. Eldridge v. Hubb Corp., 2003 Ky. Unpub. LEXIS 133 (Ky. Mar. 20, 2003).

Opinions of Attorney General.

If there were to be no break in the payment to the employee and the attorney fees and discount were not deducted from the period of his life expectancy, then the attorney fees would be paid not out of the award but in addition to the award, and that was not the intention of KRS 342.320 in authorizing lump-sum payments of attorney fees and would, in effect, increase an award beyond the maximum allowable by KRS 342.730 ; therefore, the attorney fees would have to be based on a percentage of some fixed amount and that fixed amount is the mortality rate of the person and his life expectancy at the date of his injury or last exposure. OAG 78-672 .

Research References and Practice Aids

Kentucky Bench & Bar.

Schilling, A Portion Is Three . . . . . Towards an Evaluative Approach to Pre-Injury Disability, Vol. 42, No. 4, October, 1978, Ky. Bench & Bar 16.

Patterson, Legislative Changes in Workers’ Compensation: The Pendulum Swings, Vol. 46, No. 4, October 1982, Ky. Bench & Bar 30.

Ferreri, Workers’ Compensation: Rehabilitation and the Judicial Dichotomy, Vol. 50, No. 1, Winter 1985-86 Ky. Bench & B. 24.

Jones, Kentucky Workers’ Compensation — Disability or Social Security, Volume 52, No. 4, Fall 1988 Ky. Bench & B. 29.

Hendy, Payment of Medical Benefits for the Injured Worker: Is the Current System in Need of Refinement?, Vol. 56, No. 4, Fall 1992, Ky. Bench & Bar 28.

Jones, Occupational Disease — Six Years Later, Vol. 58, No. 1, Winter 1994, Ky. Bench & Bar 7.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

Schabell, 1994 Workers’ Compensation Changes — A Plaintiff’s Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 17.

Lowther and Lowther, Workplace Injuries: Safety Penalties and Workers’ Compensation Claims, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 22.

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 64 Ky. L.J. 307 (1975-76).

Kentucky Law Survey, Patterson, Workmen’s Compensation, 65 Ky. L.J. 411 (1976-77).

Kentucky Law Survey: Cassis, Workers’ Compensation, 66 Ky. L.J. 509 (1977-78).

Kentucky Law Survey, Basil, Workers’ Compensation, 69 Ky. L.J. 687 (1980-81).

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

Harned and Bachert, 74 Ky. L.J. 491 (1985-86).

Northern Kentucky Law Review.

Comments, Kentucky Workmen’s Compensation Benefits — Apportionment and Computation, 6 N. Ky. L. Rev. 91 (1979).

Notes, Workers' Compensation — Marital Property — Johnson v. Johnson, 10 N. Ky. L. Rev. 531 (1983).

King, Workers’ Compensation Update 1992-1993, 21 N. Ky. L. Rev. 329 (1994).

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

Kemp & Kemp, Kentucky Workers’ Compensation Law Update: Issues Facing Employers, Employees, Medical Providers, Insurers and Practitioners as House Bill 1 Continues to Evolve, 26 N. Ky. L. Rev. 67 (1999).

Jackson and Crase, A Surveyof Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Brief of Petitioner, Form 102.03.

Caldwell’s Kentucky Form Book, 5th Ed., Brief of Respondent, Form 102.04.

Caldwell’s Kentucky Form Book, 5th Ed., Court of Appeals Petition for Review, Form 102.06.

342.7305. Compensability of occupational hearing loss — Authority for administrative regulations — Rebuttable presumption as to employer liability.

  1. In all claims for occupational hearing loss caused by either a single incident of trauma or by repetitive exposure to hazardous noise over an extended period of employment, the extent of binaural hearing impairment shall be determined under the “Guides to the Evaluation of Permanent Impairment.”
  2. Income benefits payable for occupational hearing loss shall be as provided in KRS 342.730 , except income benefits shall not be payable where the binaural hearing impairment converted to impairment of the whole person results in impairment of less than eight percent (8%). No impairment percentage for tinnitus shall be considered in determining impairment to the whole person.
  3. The commissioner shall provide by administrative regulation for prompt referral of hearing loss claims for evaluation, for all medical reimbursement, and for prompt authorization of hearing enhancement devices.
  4. When audiograms and other testing reveal a pattern of hearing loss compatible with that caused by hazardous noise exposure and the employee demonstrates repetitive exposure to hazardous noise in the workplace, there shall be a rebuttable presumption that the hearing impairment is an injury covered by this chapter, and the employer with whom the employee was last injuriously exposed to hazardous noise for a minimum duration of one (1) year of employment shall be exclusively liable for benefits.

HISTORY: Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 38, effective December 12, 1996; 2010, ch. 90, § 6, effective July 15, 2010; 2018 ch. 40, § 14, effective July 14, 2018.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Evidence.
  3. Award Not Limited.
  4. Award limited.
  5. Statute of Limitations.
1. Constitutionality.

Court of Appeals erred in holding that the hearing-loss statute violated the federal and state equal protection guarantees because a rational basis existed for treating hearing-loss claimants differently from other types of traumatic injury claimants inasmuch as the statute followed the approach in the Guides to the Evaluation of Permanent Impairment for not subtracting age-related hearing loss from an impairment rating, and the 8% threshold all but guaranteed that hearing-loss claimants who met the threshold had work-related, not just age-related, hearing loss. Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

Court of Appeals erred in holding that the hearing-loss statute violated the federal and state equal protection guarantees because a rational basis existed for treating hearing-loss claimants differently from other types of traumatic injury claimants inasmuch as the statute followed the approach in the Guides to the Evaluation of Permanent Impairment for not subtracting age-related hearing loss from an impairment rating, and the 8% threshold all but guaranteed that hearing-loss claimants who met the threshold had work-related, not just age-related, hearing loss. Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

2. Evidence.

Where an ALJ held that an employee’s hearing loss was due to cumulative trauma, and that the claim was barred by limitations because the employee did not prove an impairment that was attributable to the two years before the claim was filed, the appellate court properly reversed the ALJ’s decision, as the evidence overwhelmingly demonstrated an increased hearing loss during the period from two years before the claim was filed and the date when the employee stopped working. Tanks v. Roark, 104 S.W.3d 753, 2003 Ky. LEXIS 17 ( Ky. 2003 ).

Because a workers’ compensation claimant who had a history of over 30 years’ exposure to occupational noise as a heavy equipment operator presented substantial evidence of that noise and the claimant’s resulting hearing impairment, and the last employer for which the claimant worked did not rebut the presumption in KRS 342.7305(4) that the claimant was exposed at its workplace, the last employer was liable for the hearing loss. Greg's Constr. v. Keeton, 2011 Ky. App. LEXIS 159 (Ky. Ct. App. Sept. 16, 2011), aff'd, 385 S.W.3d 420, 2012 Ky. LEXIS 124 ( Ky. 2012 ).

Under KRS 342.285 , the administrative law judge (ALJ) was designated the finder of fact in workers’ compensation cases and under KRS 342.290 , the Board or a reviewing court could not substitute its judgment for the ALJs as to the weight of evidence on questions of fact. As a result, the state supreme court had to uphold the ALJ’s ruling in favor of the employee on the employee’s occupational hearing loss claim against the employer, as substantial evidence in the record showed the employee suffered a pattern of hearing loss compatible with that caused by hazardous noise exposure, and substantial evidence also showed that the employee sustained repetitive exposure to KRS 342.0011(4) injurious noise in the workplace, including the employee’s final employment with the employer, meaning the employer was exclusively liable for KRS 342.7305(4) benefits. Greg's Constr. v. Keeton, 385 S.W.3d 420, 2012 Ky. LEXIS 124 ( Ky. 2012 ).

Court of Appeals of Kentucky holds Ky. Rev. Stat. Ann. § 342.7305(2) violates equal protection guarantees established in the Fourteenth Amendment to the United States Constitution and Ky. Const. §§ 1, 2, and 3. In particular, the Court of Appeals holds the Supreme Court of Kentucky’s decision in Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 ( Ky. 2011 ), is dispositive. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018), vacated, in part sub. nom., Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

Court of Appeals of Kentucky holds by imposing an impairment rating threshold of 8 percent or greater for income benefits, Ky. Rev. Stat. Ann. § 342.7305(2) treats hearing loss claimants differently than all other traumatically injured claimants authorized to receive permanent partial disability income benefits by satisfying the minimal impairment rating threshold required by Ky. Rev. Stat. Ann. § 342.730(1)(b). Further, the Court of Appeals holds § 342.7305(2) treats hearing loss claimants with an impairment rating of less than 8 percent differently than all other hearing loss claimants qualifying for impairment ratings of 8 percent or higher, effectively depriving the former of any relief while granting the latter fair compensation under Ky. Rev. Stat. Ann. § 342.730(1)(b) and (c) commensurate with all other traumatically injured claimants. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018), vacated, in part sub. nom., Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

Because the Court of Appeals of Kentucky has held there is no real or substantial difference in the physical, functional, medical, and/or occupational impacts associated with all significant hearing loss qualifying for impairment ratings, it further holds the heightened impairment threshold enacted in Ky. Rev. Stat. Ann. § 342.7305(2) is founded on a purely artificial, arbitrary, illusory, or fictitious distinction bearing no proper relation to the purpose of the statute, and results in an unreasonable and unjust classification. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018), vacated, in part sub. nom., Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

Ky. Rev. Stat. Ann. § 342.7305(2) offends equal protection guarantees by creating two separate and unequal subclasses of similarly situated hearing loss claimants: all of whom suffered work-related injuries severe enough to qualify for an impairment rating under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and all of whom endured equivalent permanent sensory loss, limited treatment modalities, diminution of daily activities, and occupational restrictions and preclusions, but some of whom are denied equal access to income benefits due to imposition of an arbitrary impairment rating threshold. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018), vacated, in part sub. nom., Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

3. Award Not Limited.

KRS 342.730 5 does not limit hearing loss disability benefits to an award pursuant to KRS 342.730 (1)(b) because KRS 342.730(1)(a) merely provides that a combination of a hearing loss cannot add to another injury claim to create a total disability under KRS 342.730 and a partial disability under KRS 342.7305 ; therefore, an employee’s claim for total disability based on an occupational hearing loss was properly granted. Webster County Coal Corp. v. Lee, 125 S.W.3d 310, 2003 Ky. App. LEXIS 212 (Ky. Ct. App. 2003).

Because the majority of two employees’ hearing loss was work-related, they were entitled to partial disability benefits under KRS 342.7305 even though they also had age-related hearing losses. AK Steel Corp. v. Johnston, 153 S.W.3d 837, 2005 Ky. LEXIS 14 ( Ky. 2005 ).

4. Award limited.

Since the administrative law judge only found a 2% impairment rating for the claimant's work-related hearing loss, it appropriately awarded the claimant medical benefits but not income benefits for that injury. Austin Powder Co. v. Stacy, 2016 Ky. App. LEXIS 81 (Ky. Ct. App. May 20, 2016).

5. Statute of Limitations.

When a workers’ compensation claimant sustained an injury that resulted in impairment as of a certain date and continued to be exposed to workplace hazardous noise when he filed his claim, disability resulting from the impairment that was inadequate to be compensable as of two years before he filed his claim did not need to be excluded under KRS 342.185 and 342.270 when calculating the award. KRS 342.7305(2) imposed an eight percent threshold for awarding income benefits, and no medical evidence indicated that the claimant’s injury warranted treatment eight years earlier. Quebecor Book Co. v. Mikletich, 322 S.W.3d 38, 2010 Ky. LEXIS 245 ( Ky. 2010 ).

Cited in:

Manalapan Mining Co. v. Lunsford, 204 S.W.3d 601, 2006 Ky. LEXIS 200 ( Ky. 2006 ).

342.732. Income benefits and retraining incentive benefits for coal workers’ pneumoconiosis — Referral to Office of Vocational Rehabilitation — Administrative regulations — Online portal.

  1. Notwithstanding any other provision of this chapter, income benefits and retraining incentive benefits for occupational pneumoconiosis resulting from exposure to coal dust in the severance or processing of coal shall be paid as follows:
      1. If an employee has a radiographic classification of category 1/0, 1/1 or 1/2, coal workers’ pneumoconiosis and spirometric test values of eighty percent (80%) or more, the employee shall be awarded a one (1) time only retraining incentive benefit which shall be an amount equal to sixty-six and two-thirds percent (66-2/3%) of the employee’s average weekly wage as determined by KRS 342.740 , but not more than seventy-five percent (75%) of the state average weekly wage, payable semimonthly for a period not to exceed one hundred four (104) weeks, except as provided in subparagraph 3. of this paragraph. (a) 1. If an employee has a radiographic classification of category 1/0, 1/1 or 1/2, coal workers’ pneumoconiosis and spirometric test values of eighty percent (80%) or more, the employee shall be awarded a one (1) time only retraining incentive benefit which shall be an amount equal to sixty-six and two-thirds percent (66-2/3%) of the employee’s average weekly wage as determined by KRS 342.740 , but not more than seventy-five percent (75%) of the state average weekly wage, payable semimonthly for a period not to exceed one hundred four (104) weeks, except as provided in subparagraph 3. of this paragraph.
      2. Except as provided in subparagraph 3. of this paragraph, these benefits shall be paid only while the employee is enrolled and actively and successfully participating as a full-time student taking the equivalent of twelve (12) or more credit hours per week in a bona fide training or education program that if successfully completed will qualify the person completing the course for a trade, occupation, or profession and which program can be completed within the period benefits are payable under this subsection. The program must be approved under administrative regulations to be promulgated by the commissioner. These benefits shall also be paid to an employee who is a part-time student taking not less than the equivalent of six (6) nor more than eleven (11) credit hours per week, except that benefits shall be an amount equal to thirty-three and one-third percent (33-1/3%) of the employee’s average weekly wage as determined by KRS 342.740, but not more than thirty-seven and one-half percent (37-1/2%) of the state average weekly wage, payable biweekly for a period not to exceed two hundred eight (208) weeks.
      3. These benefits shall also be paid biweekly while an employee is actively and successfully pursuing a High School Equivalency Diploma in accordance with administrative regulations promulgated by the commissioner. These benefits shall be paid in the amount of sixty-six and two-thirds percent (66-2/3%) of the employee’s average weekly wage not to exceed seventy-five percent (75%) of the state average weekly wage for a maximum period not to exceed seventeen (17) weeks. These income benefits shall be in addition to the maximum amount of retraining incentive benefits payable under this paragraph.
      4. The employer shall also pay, directly to the institution conducting the training or education program, instruction, tuition, and material costs not to exceed five thousand dollars ($5,000).
      5. The employee shall notify the parties of his or her intention to retrain within thirty (30) days after the administrative law judge’s order becomes final. The employee must initiate retraining within three hundred sixty-five (365) days of the administrative law judge’s final order. Income benefits payable under subparagraphs 1. and 2. of this paragraph shall begin no later than thirty (30) days following conclusion of income benefits paid under subparagraph 3. if such benefits were paid.
      6. If an employee who is awarded retraining incentive benefits under this paragraph successfully completes a bona fide training or education program approved by the commissioner, upon completion of the training or education program, the employer shall pay to that employee the sum of five thousand dollars ($5,000) for successful completion of a program that requires a course of study of not less than twelve (12) months nor more than eighteen (18) months, or the sum of ten thousand dollars ($10,000) for successful completion of a program that requires a course of study of more than eighteen (18) months. This amount shall be in addition to retraining incentive benefits awarded under this paragraph, and tuition expenses paid by the employer.
      7. An employee who is age fifty-seven (57) years or older on the date of last exposure and who is awarded retraining incentive benefits under subparagraphs 1. to 4. of this paragraph, may elect to receive in lieu of retraining incentive benefits, an amount equal to sixty-six and two-thirds percent (66-2/3%) of the employee’s average weekly wage, not to exceed seventy-five percent (75%) of the state average weekly wage as determined by KRS 342.740 multiplied by the disability rating of twenty-five percent (25%) for a period not to exceed four hundred twenty-five (425) weeks, or until the employee reaches sixty-five (65) years of age, whichever occurs first, KRS 342.730(4) notwithstanding.
      8. A claim for retraining incentive benefits provided under this section may be filed, but benefits shall not be payable, while an employee is employed in the severance or processing of coal as defined in KRS 342.0011(23).
      9. If an employer appeals an award of retraining incentive benefits, upon an employee’s motion, an administrative law judge may grant retraining incentive benefits pending appeal as interlocutory relief.
      10. If an employee elects to defer payment of retraining incentive benefits for a period of retraining longer than three hundred sixty-five (365) days, benefits otherwise payable shall be reduced week-for-week for each week retraining benefits are further deferred;
      1. If an employee has a radiographic classification of category 1/0, 1/1, or 1/2 coal workers’ pneumoconiosis and respiratory impairment evidenced by spirometric test values of fifty-five percent (55%) or more but less than eighty percent (80%) of the predicted normal values, or category 2/1, 2/2, or 2/3 coal workers’ pneumoconiosis and spirometric test values of eighty percent (80%) or more of the predicted normal values, there shall be an irrebuttable presumption that the employee has a disability rating of twenty-five percent (25%) resulting from exposure to coal dust, and the employee shall be awarded an income benefit which shall be an amount equal to sixty-six and two-thirds percent (66-2/3%) of the employee’s average weekly wage, but not to exceed seventy-five percent (75%) of the state average weekly wage as determined by KRS 342.740 multiplied by the disability rating of twenty-five percent (25%). The award shall be payable for a period not to exceed four hundred twenty-five (425) weeks. (b) 1. If an employee has a radiographic classification of category 1/0, 1/1, or 1/2 coal workers’ pneumoconiosis and respiratory impairment evidenced by spirometric test values of fifty-five percent (55%) or more but less than eighty percent (80%) of the predicted normal values, or category 2/1, 2/2, or 2/3 coal workers’ pneumoconiosis and spirometric test values of eighty percent (80%) or more of the predicted normal values, there shall be an irrebuttable presumption that the employee has a disability rating of twenty-five percent (25%) resulting from exposure to coal dust, and the employee shall be awarded an income benefit which shall be an amount equal to sixty-six and two-thirds percent (66-2/3%) of the employee’s average weekly wage, but not to exceed seventy-five percent (75%) of the state average weekly wage as determined by KRS 342.740 multiplied by the disability rating of twenty-five percent (25%). The award shall be payable for a period not to exceed four hundred twenty-five (425) weeks.
      2. An employee who is awarded benefits under this paragraph may, at the time of the award or before benefit payments begin, elect to receive retraining incentive benefits provided under paragraph (a)1. to 6. of this subsection, in lieu of income benefits awarded under this paragraph, provided that such option is available one (1) time only and is not revocable, and provided that in no event shall income benefits payable under this paragraph be stacked or added to retraining incentive income benefits paid or payable under subparagraphs 1. to 6. of paragraph (a)1. to 6. of this subsection to extend the period of disability;
    1. If it is determined that an employee has a radiographic classification of category 1/0, 1/1, or 1/2, and respiratory impairment resulting from exposure to coal dust as evidenced by spirometric test values of less than fifty-five percent (55%) of the predicted normal values, or category 2/1, 2/2, or 2/3 coal workers’ pneumoconiosis and respiratory impairment evidenced by spirometric test values of fifty-five percent (55%) or more but less than eighty percent (80%) of the predicted normal values, or category 3/2 or 3/3 coal workers’ pneumoconiosis and spirometric test values of eighty percent (80%) or more, there shall be an irrebuttable presumption that the employee has a disability rating of fifty percent (50%) resulting from exposure to coal dust, and the employee shall be awarded an income benefit which shall be an amount equal to sixty-six and two-thirds percent (66-2/3%) of the employee’s average weekly wage but not to exceed seventy-five percent (75%) of the state average weekly wage as determined by KRS 342.740 multiplied by the disability rating of fifty percent (50%). The award shall be payable for a period not to exceed four hundred twenty-five (425) weeks;
    2. If it is determined that an employee has a radiographic classification of category 2/1, 2/2, or 2/3 coal workers’ pneumoconiosis, based on the latest ILO International Classification of Radiographics, and respiratory impairment as evidenced by spirometric test values of less than fifty-five percent (55%) of the predicted normal values or category 3/2 or 3/3 pneumoconiosis and respiratory impairment evidenced by spirometric test values of fifty-five percent (55%) or more but less than eighty percent (80%) of the predicted normal values, there shall be an irrebuttable presumption that the employee has a seventy-five percent (75%) disability rating resulting from exposure to coal dust and the employee shall be awarded income benefits which shall be equal to sixty-six and two-thirds percent (66-2/3%) of the employee’s average weekly wage but not to exceed seventy-five percent (75%) of the state average weekly wage as determined by KRS 342.740 multiplied by the disability rating of seventy-five percent (75%). The award shall be payable for a period not to exceed five hundred twenty (520) weeks. Income benefits awarded under this paragraph shall be payable to the employee during the disability; and
    3. If it is determined that an employee has radiographic classification of 3/2 or 3/3 occupational pneumoconiosis and respiratory impairment evidenced by spirometric test values of less than fifty-five percent (55%) of the predicted normal values, or complicated pneumoconiosis (large opacities category A, B, or C progressive massive fibrosis), there shall be an irrebuttable presumption that the employee is totally disabled resulting from exposure to coal dust, and the employee shall be awarded income benefits equal to sixty-six and two-thirds percent (66-2/3%) of the employee’s average weekly wage but not more than one hundred percent (100%) of the state average weekly wage and not less than twenty percent (20%) of the average weekly wage of the state as determined by KRS 342.740. Income benefits awarded under this paragraph shall be payable to the employee during such disability.
  2. The presence of respiratory impairment resulting from exposure to coal dust shall be established by using the largest forced vital capacity (FVC) value or the largest forced expiratory volume in one second (FEV1) value determined from the totality of all such spirometric testing performed in compliance with accepted medical standards.
  3. When valid spirometric tests are not provided and a physician certifies to the administrative law judge that spirometric testing is not medically indicated because of the permanent physical condition of the employee, the administrative law judge shall make his or her decision on the basis of evidence admitted which establishes the existence of a diagnosis of occupational pneumoconiosis and respiratory impairment due to the occupational pneumoconiosis. The evidence submitted by the employee shall include one (1) or more arterial blood gas studies performed in accordance with accepted medical standards. Income benefits shall not be awarded in the absence of valid spirometric tests if the claimant’s PO2 arterial blood gas value is equal to or higher than one (1) standard deviation from the normal value obtained by the formula (103.5-0.42X), where X equals the claimant’s age at the time of the arterial blood gas study.
  4. Upon request, the commissioner shall refer an employee who has been awarded retraining incentive benefits under subsection (1)(a) of this section to the Office of Vocational Rehabilitation for evaluation and assessment of the training, education, or other services necessary to prepare the employee for a trade, occupation, or profession that will return the employee to remunerative employment, or services necessary and appropriate to prepare and enable the employee to successfully complete a bona fide training or education program approved by the commissioner. The commissioner shall contract with the Office of Vocational Rehabilitation to provide vocational rehabilitation or education services commensurate with the skill levels and abilities of the employee. Services provided under this subsection shall be funded by the coal workers’ pneumoconiosis fund, KRS 342. 1242 notwithstanding, for claims filed on or before June 30, 2017, and by the employer for claims filed after June 30, 2017.
  5. The commissioner shall promulgate administrative regulations sufficient to effectuate the provisions relating to retraining incentive benefits provided under subsection (1)(a) of this section. The administrative regulations shall:
    1. Create an online portal through which employees shall select a facility or institution to provide their retraining. This portal shall list bona fide training or education programs. These programs shall include postsecondary programs registered with the Higher Education Assistance Authority, and will qualify the employee for a trade, occupation, or profession. The programs listed shall be capable of completion within the period benefits are payable under subsection (1)(a) of this section;
    2. Establish requirements for approval and certification of a bona fide training or education program;
    3. Provide that funds paid to the training or education program by the employer as required under subsection (1)(a)4. of this section shall be applied only to instruction, tuition, material costs, and any fees necessary for the completion of the program;
    4. Establish requirements for successful participation in and completion of an approved and certified bona fide training or education program, and eligibility standards that must be satisfied to receive sums to be paid by the employer pursuant to subsection (1)(a)6. of this section; and
    5. Establish attendance, performance and progress standards, and reporting requirements in consultation with the Office of Adult Education within the Department of Workforce Investment in the Education and Workforce Development Cabinet as conditions that must be satisfied to receive retraining incentive income benefits pursuant to subsection (1)(a)3. of this section.
  6. In no event shall income benefits awarded under this section be stacked or added to income benefits awarded under KRS 342.730 to extend the period of disability and in no event shall income or retraining incentive benefits be paid to the employee while the employee is working in the mining industry in the severance or processing of coal as defined in KRS 342.0011(23)(a).

HISTORY: Enact. Acts 1987 (Ex. Sess.), ch. 1, § 56, effective October 26, 1987; 1990, ch. 99, § 1, effective July 13, 1990; 1994, ch. 181, Part 7, § 26, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 33, effective December 12, 1996; 2000, ch. 514, § 31, effective July 14, 2000; 2002, ch. 340, § 3, effective July 15, 2002; 2006, ch. 211, § 160, effective July 12, 2006; 2010, ch. 24, § 1842, effective July 15, 2010; 2017 ch. 63, § 35, effective June 29, 2017; 2017 ch. 173, § 7, effective June 29, 2017; 2018 ch. 40, § 15, effective July 14, 2018; 2019 ch. 146, § 73, effective June 27, 2019.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by2017 Ky. Acts chs. 63 and 173, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Purpose.
  3. — 1994 Amendment.
  4. — 1996 Amendment.
  5. Legislative Intent.
  6. Benefits.
  7. — Employee Continuing to Work.
  8. — Employees of Service Providers.
  9. — Use.
  10. — Medical.
  11. — Limitation.
  12. — Retraining.
  13. Award.
  14. — Required Finding.
  15. — Apportionment.
  16. — Death of Claimant.
  17. — Conflict of Interest.
  18. — Duration.
  19. — Reopening.
  20. Liability for Payment.
  21. Use of Guides.
  22. Burden of Proof.
  23. Spirometric Test.
  24. Interpretation of X-Rays.
  25. Definition of Terms.
  26. Presumption of Disability.
  27. Total Disability.
  28. 1990 Amendment to KRS 342.730 .
  29. Settlement.
1. Constitutionality.

The mere fact that the legislative treatment of coal workers’ pneumoconiosis is different from that of other occupational pneumoconiosis does not make it arbitrary or unfair to either group where the legislative history provides distinctive and natural reasons for classifying them separately; therefore, this section is not unconstitutional as special legislation. Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 1994 Ky. LEXIS 6 ( Ky. 1994 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

The classifications created in subdivision (1)(d) of this section are rationally related to a legitimate state objective, affording protection to all of Kentucky industry, from an economic drain caused by Special Fund assessments for compensation claims directly related to the coal industry, and particularly those due to high incidence of coal workers’ pneumoconiosis; therefore, subdivision (1)(d) of this section is not unconstitutional as violative of the equal protection of the law. Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 1994 Ky. LEXIS 6 ( Ky. 1994 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

Legislature’s purpose for enacting this section was to encourage coal workers who have contracted occupational pneumoconiosis but who have not as yet sustained a significant respiratory impairment to leave the industry before they become disabled and the means by which the legislature sought to accomplish this was by providing for retraining incentive benefits, therefore this section does not amount to special legislation in violation of Const., § 59. Kem Coal Co. v. Baker, 918 S.W.2d 236, 1996 Ky. App. LEXIS 37 (Ky. Ct. App. 1996).

The pre-1994 version of this section did not constitute special legislation in violation of Const., § 59. Leeco, Inc. v. Asher, 919 S.W.2d 227, 1996 Ky. App. LEXIS 36 (Ky. Ct. App. 1996); Leeco, Inc. v. Brock, 919 S.W.2d 229, 1996 Ky. App. LEXIS 32 (Ky. Ct. App. 1996); Leeco, Inc. v. Asher, 919 S.W.2d 232, 1996 Ky. App. LEXIS 31 (Ky. Ct. App. 1996); Leeco, Inc. v. Caldwell, 919 S.W.2d 234, 1996 Ky. App. LEXIS 41 (Ky. Ct. App. 1996); Leeco, Inc. v. Sizemore, 919 S.W.2d 237, 1996 Ky. App. LEXIS 54 (Ky. Ct. App. 1996).

This section furthers the goals of lessening economic drain on the Special Fund caused by claims due to coal mine employment, reducing workers’ compensation payments and providing an alternative to total disability with a specific purpose of retraining workers for other jobs so as to diminish the likelihood of their becoming totally disabled by coal miners’ pneumoconiosis later on; as such, it does not violate the employer’s right to due process under the Const., § 2. Leeco, Inc. v. Asher, 919 S.W.2d 227, 1996 Ky. App. LEXIS 36 (Ky. Ct. App. 1996); Leeco, Inc. v. Brock, 919 S.W.2d 229, 1996 Ky. App. LEXIS 32 (Ky. Ct. App. 1996); Leeco, Inc. v. Asher, 919 S.W.2d 232, 1996 Ky. App. LEXIS 31 (Ky. Ct. App. 1996); Leeco, Inc. v. Caldwell, 919 S.W.2d 234, 1996 Ky. App. LEXIS 41 (Ky. Ct. App. 1996); Leeco, Inc. v. Sizemore, 919 S.W.2d 237, 1996 Ky. App. LEXIS 54 (Ky. Ct. App. 1996); Lost Mountain Mining v. Fields, 918 S.W.2d 232, 1996 Ky. App. LEXIS 28 (Ky. Ct. App. 1996); Kem Coal Co. v. Baker, 918 S.W.2d 236, 1996 Ky. App. LEXIS 37 (Ky. Ct. App. 1996).

When an employer sought review of an award of 50% disability to an employee in a coal workers' pneumoconiosis claim, the appeal failed because the employer contested the constitutionality of Ky. Rev. Stat. Ann. § 342.732 in light of a Kentucky Supreme Court decision but (1) the employer did not preserve the issue for appellate review, as the issue was not listed as a contested issue in a benefit review conference memorandum and order, and the employer did not raise the issue in the employer's brief to an administrative law judge (ALJ) or petition for reconsideration when asking the ALJ to make further findings on the use of a certain test, and (2) the record did not reflect compliance with Ky. R. Civ. P. 76.25(8) or Ky. Rev. Stat. Ann. § 418.075(2) by providing notice of the claim to the Kentucky Attorney General. Austin Powder Co. v. Stacy, 495 S.W.3d 732, 2016 Ky. App. LEXIS 127 (Ky. Ct. App. 2016).

Ky. Rev. Stat. Ann. § 342.732(1)(a)(7) did not violate equal protection because paying employees between the ages of 57 and 65 a monetary benefit that was not tied to retraining may have encouraged them to leave the coal mining industry, thus removing employees susceptible to more severe impairment from the work place, and as a result, treating retraining incentive benefits eligible employees differently was rationally related to the purpose of those benefits. Ballou v. Enter. Mining Co, LLC, 512 S.W.3d 724, 2017 Ky. LEXIS 78 ( Ky. 2017 ).

2. Purpose.
3. — 1994 Amendment.

The purpose of the 1994 amendment to subdivision (1)(a) of this section was to provide a remedy that would more effectively accomplish the purpose of the provision; therefore, the amendment is properly classified as remedial legislation and applies to all claims pending on or after its effective date. Thornsbury v. AERO Energy, 908 S.W.2d 109, 1995 Ky. LEXIS 106 ( Ky. 1995 ).

Workers who voluntarily (i.e. were not discharged for misconduct or dishonesty) left the mining industry were entitled to direct payment of retraining incentive benefits (RIB) under the 1994 amendment to this section. Harlan Ky. Va. Coal v. Baker, 957 S.W.2d 728, 1997 Ky. App. LEXIS 130 (Ky. Ct. App. 1997).

4. — 1996 Amendment.

Regardless of whether the 1996 amendment is remedial, it did not apply to a claim that had already been decided and was no longer pending on the effective date of the amendment. Breeding v. Colonial Coal Co., 975 S.W.2d 914, 1998 Ky. LEXIS 104 ( Ky. 1998 ).

The 1996 amendment to KRS 342.732(1)(a) was not remedial and could not be applied retroactively to a worker’s retraining incentive benefits claim which was filed two (2) years after an injurious exposure to coal; since the date of the injury controlled the applicable version of the statute, the 1996 version did not apply because the injury occurred two (2) years prior. Zielinski Constr. Co. v. Burden, 62 S.W.3d 14, 2001 Ky. LEXIS 145 ( Ky. 2001 ).

5. Legislative Intent.

It seems most likely that where a claimant exhibits differing degrees of restrictive and obstructive impairment, the Legislature intended to award benefits based on the more severe impairment, regardless of whether it is due to pneumoconiosis or to obstructive airways disease; therefore, a claimant may be awarded benefits pursuant to subsection (1)(c) of this section if either his largest forced vital capacity (FVC) or his largest forced expiratory volume in the first second (FEV1) value is less than 55% of the predicted normal value. Newberg v. Chumley, 824 S.W.2d 413, 1992 Ky. LEXIS 18 ( Ky. 1992 ).

Where a claimant exhibits differing degrees of restrictive and obstructive impairment, the Legislature intended to award benefits based on the more severe impairment resulting from exposure to coal dust, regardless of whether it is due to pneumoconiosis or to obstructive airways disease; therefore, subsection (2) of this section requires that if either the largest FVC value or the largest FEV1 value is 55% or more but less than 80% of the predicted normal, a claimant may qualify for benefits under KRS 342.732(1)(b). Newberg v. Wright, 824 S.W.2d 843, 1992 Ky. LEXIS 27 ( Ky. 1992 ).

The legislature’s purpose in enacting this section was to encourage coal workers who had contracted occupational pneumoconiosis, but who had not yet sustained a significant respiratory impairment, to leave the industry before they became disabled, and to accomplish the objective the legislature provided for retraining incentive benefits. Leeco, Inc. v. Asher, 919 S.W.2d 227, 1996 Ky. App. LEXIS 36 (Ky. Ct. App. 1996); Leeco, Inc. v. Brock, 919 S.W.2d 229, 1996 Ky. App. LEXIS 32 (Ky. Ct. App. 1996); Leeco, Inc. v. Asher, 919 S.W.2d 232, 1996 Ky. App. LEXIS 31 (Ky. Ct. App. 1996); Leeco, Inc. v. Caldwell, 919 S.W.2d 234, 1996 Ky. App. LEXIS 41 (Ky. Ct. App. 1996); Leeco, Inc. v. Sizemore, 919 S.W.2d 237, 1996 Ky. App. LEXIS 54 (Ky. Ct. App. 1996).

6. Benefits.

Where workers’ compensation claimant opted to apply for Retraining Incentive Benefits (RIB) upon finding he had coal workers’ pneumoconiosis, as there is no date of last exposure, the appropriate date for determining the benefit rate for RIB awarded to working miners was to determine the rate as of the date the claim was filed when the worker was still employed. Arch of Kentucky v. Thomas, 895 S.W.2d 578, 1995 Ky. LEXIS 41 ( Ky. 1995 ).

7. — Employee Continuing to Work.

Total disability payments due under this section for claimant having category 2 pneumoconiosis were not authorized to be paid to claimant who continued to work as a miner because claimant was still being injuriously exposed to hazards of the disease and thus payments could not begin under subsection (1)(b) of KRS 342.316 and since workers’ compensation benefits are to replace lost income, and to pay benefits to worker still receiving earnings would be double recovery. For so long as claimant continued to work for the same employer, this worker’s benefits should be held in abeyance and not dismissed. Smith v. Leeco, Inc., 897 S.W.2d 581, 1995 Ky. LEXIS 25 ( Ky. 1995 ).

A workers’ compensation award that is held in abeyance while employee continues to work is payable at the rate in effect at the time the benefit was sought, with the payment of benefits beginning at the time of the last injurious exposure. Leeco, Inc. v. Smith, 970 S.W.2d 337, 1998 Ky. LEXIS 102 ( Ky. 1998 ).

8. — Employees of Service Providers.

Subsection (1) of this section does not limit eligibility for the benefits awarded under any of its three subsections to workers who acquired their occupational exposure to coal dust while employed by a company which was engaged in coal mining or to workers who are coal miners, but also applies to employers and workers providing services to coal mining companies. McKenzie v. Whayne Supply Co., 898 S.W.2d 484, 1995 Ky. LEXIS 56 ( Ky. 1995 ) (decision prior to 1996 (1st Ex. Sess.) amendment).

9. — Use.

Subdivision (1)(a) of this section does not require an employee who receives Retraining Incentive Benefits (RIB) to use those benefits for vocational retraining. Eastern Coal Corp. v. Blankenship, 813 S.W.2d 808, 1991 Ky. LEXIS 72 ( Ky. 1991 ) (decision prior to 1996 (1st Ex. Sess.) amendment).

A claimant who was partially occupationally disabled by a combination of coal workers’ pneumoconiosis and occupational injury was not entitled to receive, for 425 weeks, benefits greater than 75% of the state’s average weekly wage, the maximum authorized by either KRS 342.730(1)(b) or KRS 342.732(1)(b), for permanent, partial, occupational disability. Mooney v. Pittsburg & Midway Coal Mining Co., 849 S.W.2d 527, 1993 Ky. LEXIS 55 ( Ky. 1993 ).

10. — Medical.

The Workers’ Compensation Board did not err by concluding that a claimant who is awarded restraining incentive benefits (RIB) pursuant to this section may also be awarded medical benefits pursuant to KRS 342.020(1). Peabody Coal Co. v. Hicks, 824 S.W.2d 411, 1992 Ky. LEXIS 112 ( Ky. 1992 ).

11. — Limitation.

A claimant who was 100% occupationally disabled due to coal workers’ pneumoconiosis and 20% occupationally disabled due to an injury was limited to receiving benefits from the combined awards equal to 662/3% of his average weekly wage, so long as that amount did not exceed the state average weekly wage. Matney v. Newberg, 849 S.W.2d 526, 1992 Ky. LEXIS 197 ( Ky. 1992 ).

Where a worker has been awarded a Retraining Incentive Benefit (RIB) and subsequently is entitled to receive a higher level of benefits pursuant to this section, the subsequent award of income benefits is reduced by the amount of the RIB which has been received under KRS 342.125 . In other words, a worker may not receive both a RIB benefit and the full income benefit for which he would otherwise be entitled by virtue of his occupational disability. Helton v. Canada Mountain Coal Augering, 892 S.W.2d 588, 1995 Ky. LEXIS 30 ( Ky. 1995 ) (decision prior to 1996 (1st Ex. Sess.) amendment).

A worker may not receive a concurrent income benefit and retraining incentive benefit, pursuant to subdivision (1)(a) of this section and KRS 342.730(1)(a), that exceeds the maximum benefit for permanent total occupational disability as set forth in KRS 342.730(1)(a). McCoy Elkhorn Coal Corp. v. Sullivan, 862 S.W.2d 891, 1993 Ky. LEXIS 134 ( Ky. 1993 ) (decision prior to 1996 (1st Ex. Sess.) amendment).

Where one physician measured claimant’s FVC value as 89%, and another physician reported a FEV1 value of 82%, a retraining incentive benefit was the maximum benefit to which claimant was entitled by law. Varney v. Newberg, 860 S.W.2d 752, 1993 Ky. LEXIS 115 ( Ky. 1993 ).

12. — Retraining.

At the time claimant filed his original application, retraining incentive benefits (RIB) did not exist and he was compensated via the approved settlement agreement according to the provisions of the Compensation Act applicable at that time; without showing a worsening of his condition while working for a subsequent employer, there was no basis for imposing liability. A legislative enactment does not automatically entitle a previously compensated worker to the provisions of the new legislation, whether that involves new and distinct benefits or not. Moore v. Sunstone Energy, Inc., 849 S.W.2d 529, 1993 Ky. LEXIS 56 ( Ky. 1993 ).

Subsection (1)(a) of this section requires no finding that a worker who has contracted coal workers’ pneumoconiosis be in need of retraining nor, at the time this claim was filed, did it require that the benefit be used for retraining. The benefit simply provides what its title indicates, an incentive for retraining. McKenzie v. Whayne Supply Co., 898 S.W.2d 484, 1995 Ky. LEXIS 56 ( Ky. 1995 ) (decision prior to 1996 (1st Ex. Sess.) amendment).

The 208-week period contemplated by subsection (1)(a) of this section must begin on the date upon which the retraining incentive benefit award becomes final and continue, uninterrupted, until it expires. Meade v. Spud Mining, 949 S.W.2d 584, 1997 Ky. LEXIS 65 ( Ky. 1997 ).

In those instances where an award has been appealed, the award becomes final for the purposes of KRS 342.316 (1(b) when the appellate process has been exhausted. Meade v. Spud Mining, 949 S.W.2d 584, 1997 Ky. LEXIS 65 ( Ky. 1997 ).

Since Workers’ Compensation Board’s order, reversing administrative law judge’s award of retraining incentive benefits, allowed the judge to strip the claimant of vested benefits, the order was “final” under CR 54 and immediately appealable. Davis v. Island Creek Coal Co., 969 S.W.2d 712, 1998 Ky. LEXIS 99 ( Ky. 1998 ).

Where claimant retired from coal mining after suffering a heart attack, under the 1994 version of this section, his age and the fact he was receiving old age social security benefits did not make him ineligible for a retraining incentive benefit. Breeding v. Colonial Coal Co., 975 S.W.2d 914, 1998 Ky. LEXIS 104 ( Ky. 1998 ).

Since the fees payable to a claimant’s attorney were to be deducted from the award under KRS 342.320(2)(a), and under KRS 342.732(1)(a), the claimant could not receive retraining incentive benefits until he was enrolled as a student, his attorney’s motion for fees was premature under both KRS 342.320(2)(a) and 803 KAR 25:125. Howard v. Peabody Coal Co., 185 S.W.3d 165, 2006 Ky. LEXIS 48 ( Ky. 2006 ).

13. Award.

Award was proper under subsection (1)(c) of this section where the administrative law judge ruled that claimant’s radiographs indicated category 1 pneumoconiosis because even though the largest forced vital capacity (FVC) was 76%, the largest forced expiratory volume in the first second was 47%. Newberg v. Chumley, 824 S.W.2d 413, 1992 Ky. LEXIS 18 ( Ky. 1992 ) (Decision prior to 1996 (1st Ex. Sess.) amendment).

Finding that an employee suffered from category pneumoconiosis as a result of coal dust exposure and an award of total disability benefits was upheld. Blue Diamond Coal Company/Scotia Coal Co. v. Beale, 847 S.W.2d 61, 1991 Ky. App. LEXIS 155 (Ky. Ct. App. 1991), overruled in part, Newberg v. Elswick, 1993 Ky. App. LEXIS 70 (Ky. Ct. App. May 28, 1993).

Where the evidence of record compelled a finding that claimant’s greatest FVC value was less than 80% of the predicted normal and that the impairment resulted from his exposure to coal dust, claimant was entitled to benefits pursuant to subdivision (1)(b) of this section. Newberg v. Garrett, 858 S.W.2d 181, 1993 Ky. LEXIS 85 ( Ky. 1993 ).

Administrative law judge (ALJ) properly awarded benefits for disability proven to have existed at the time claimant left Kentucky employer’s employ, although not diagnosed until he began working in another state. Coal Dust Coal Co. v. Stiltner, 905 S.W.2d 859, 1995 Ky. LEXIS 100 (Kan. 1995).

Because the submitted claim for retraining incentive benefits due to coal workers’ pneumoconiosis was not supported by reports of two separate chest x—rays, as required under former KRS 342.316 (2)(d)1., claimant was not entitled to an award pursuant to subsection (1)(a) of this section; correction of such substantive defect was not permitted by case law. Miller v. Arch of Kentucky, 918 S.W.2d 748, 1996 Ky. App. LEXIS 42 (Ky. Ct. App. 1996) (decision prior to 1996 (1st Ex. Sess.) amendment of this section and KRS 342.316 ).

14. — Required Finding.

Because a finding that claimant’s demonstrated respiratory impairment resulted from an occupational exposure to coal dust is required by this section, and the administrative law judge made no such finding, the award must be reversed and the case remanded for a finding on that issue. Whittaker v. Wagner, 898 S.W.2d 492, 1995 Ky. LEXIS 73 ( Ky. 1995 ).

In instances where a claim is settled, the administrative law judge who approves the agreement between the worker and his employer is not required to make findings that the presumptive weight of the university evaluator’s testimony has been overcome or that the worker is currently enrolled in a training or educational program as required by subdivision (1)(a). Golden Oak Mining, Co., L.P. v. Kentucky Coal Workers' Pneumoconiosis Fund, 19 S.W.3d 99, 2000 Ky. LEXIS 57 ( Ky. 2000 ).

15. — Apportionment.

Where an employer and employee have arrived at a pre-award lump-sum settlement of a claim which releases the employer from liability and which has been approved by the administrative law judge, any liability on that claim which may later be assigned to the employer is extinguished upon payment of the agreed upon sum; such payment gives rise to an immediate obligation on the part of the Special Fund to commence payment on the portion of the award for which it is liable. Newberg v. Chumley, 824 S.W.2d 413, 1992 Ky. LEXIS 18 ( Ky. 1992 ).

16. — Death of Claimant.

Neither the present nor the pre-1990 version of KRS 342.730(3), authorized either the award or the continuation of a retraining incentive benefit to a worker’s survivors. Tackett v. Bethenergy Mines, Inc., 841 S.W.2d 177, 1992 Ky. LEXIS 174 ( Ky. 1992 ).

The identity of the beneficiary is determined at the death of the worker, however benefits are governed by the law in effect on the date of the last exposure. Newberg v. Davis, 867 S.W.2d 193, 1993 Ky. LEXIS 173 ( Ky. 1993 ).

17. — Conflict of Interest.

Administrative Law Judge’s (ALJ) previous employment with the Special Fund did not create a conflict of interest where there was no evidence that the ALJ had any direct involvement in or personal knowledge of instant claim for coal workers’ pneumoconiosis benefits prior to his employment as an ALJ and where the Special Fund bore no liability for retraining incentive benefits awarded pursuant to subdivision (1)(a) of this section, the maximum benefit for which the evidence showed claimant to have been eligible. Bullock v. Peabody Coal Co., 882 S.W.2d 676, 1994 Ky. LEXIS 83 ( Ky. 1994 ).

18. — Duration.

The fact that the Special Fund must commence payment at a date earlier than anticipated does not entitle the employee to receive, during his life expectancy, an amount of benefits greater than that which is authorized by this section: it merely accelerates the date upon which payment must commence and, as a result, the date upon which payment of the amount of benefits which fall during the claimant’s life expectancy is complete; if the claimant should live beyond the age of his anticipated life expectancy, payment would, of course, resume for so long as he lives. Newberg v. Chumley, 824 S.W.2d 413, 1992 Ky. LEXIS 18 ( Ky. 1992 ).

The statutory language and the practical purposes of a retraining incentive benefits award make it clear that such award shall not be continued after claimant’s death. Stephens v. Denairo Mining Co., 833 S.W.2d 383, 1992 Ky. LEXIS 102 ( Ky. 1992 ).

The term “not to exceed,” as utilized in this section, is the functional equivalent of “for a maximum period . . . . . of,” as utilized in KRS 342.730 as is read prior to its amendment in 1996 (1st Ex. Sess.), ch. 1, § 30. The discrepancy in the terminology of the two statutes is a distinction without a difference and the term “not to exceed” does not grant an ALJ the discretion to award a retraining incentive benefit for a period of less than 208 weeks based on the merits of a particular claim. Chisholm Coal Co. v. Downey, 865 S.W.2d 315, 1993 Ky. LEXIS 164 ( Ky. 1993 ).

A worker who the Administrative Law Judge (ALJ) has determined is totally, occupationally disabled by a combination of injury and coal workers’ pneumoconiosis may receive a combined award of lifetime benefits pursuant to this section and KRS 342.730 . Whittaker v. Kennedy, 883 S.W.2d 489, 1994 Ky. LEXIS 84 ( Ky. 1994 ).

19. — Reopening.

Dismissal of a motion to reopen a workers’ compensation claim arising from pneumoconiosis was proper because the worker had received no additional exposure to coal dust, and KRS 342.125(5)(a) required a worker seeking to reopen an award rendered under KRS 342.732 to make a preliminary showing that included a progression of pneumoconiosis, the development of respiratory impairment due the disease, and two (2) additional years of continuous exposure to the hazards of the disease in Kentucky; the additional-exposure requirement was not arbitrary or capricious, and did not violate the Kentucky Constitution. Bolin v. T & T Mining, 231 S.W.3d 130, 2007 Ky. LEXIS 171 ( Ky. 2007 ).

20. Liability for Payment.

Employee went to work for defendant coal company and after working less than two hours, became unconscious. After regaining consciousness informed his foreman that he felt ill and had to leave and five days later, after being examined by a physician he was diagnosed with pneumoconiosis. Although employee had previously worked for another coal company for some 13 years, defendant coal company was liable for payment of a retraining incentive benefit awarded under this section as KRS 342.316 (now see subsection (11) of KRS 342.316 ) unequivocally states that the employer in whose employment the employee was last exposed to the hazard of the disease shall alone be liable for payment of a retraining incentive benefit. Howell v. Shelcha Coal Co., 834 S.W.2d 693, 1992 Ky. App. LEXIS 190 (Ky. Ct. App. 1992).

21. Use of Guides.

Because this section requires the use of the American Medical Association’s Guides to the Evaluation of Permanent Impairment to calculate the reported values of occupational disability as a percent of the predicted normal value, the administrative law judge did have the authority to check the medical expert’s calculated percentage to ascertain that the Guides were used and used correctly. Newberg v. Wright, 824 S.W.2d 843, 1992 Ky. LEXIS 27 ( Ky. 1992 ).

22. Burden of Proof.

It is apparent from reading this section that the legislature sought to create a scheme of benefits for workers who had contracted coal workers’ pneumoconiosis. It is also apparent that they sought to award a higher level of benefits to those workers who demonstrated a respiratory impairment which resulted from exposure to coal dust in addition to demonstrating category 1 pneumoconiosis. Because there is no evidence that the degree of impairment attributable to exposure to coal dust and to smoking can be separated, there is at present no medical basis to rule that a particular portion of the resulting occupational disability is not compensable because it is due to cigarette smoking. Furthermore, the legislature has provided no statutory formula for apportioning compensability where smoking is a contributory cause of a claimant’s respiratory impairment and, therefore, of his occupational disability. Newberg v. Reynolds, 831 S.W.2d 170, 1992 Ky. LEXIS 71 ( Ky. 1992 ).

In no way does the statute relieve a worker seeking benefits due to coal workers’ pneumoconiosis of the burden of proving that the exposure to the coal dust which he incurred at work is the cause of the physical condition upon which his claim of occupational disability is based. Arch on N. Fork v. Campbell, 865 S.W.2d 312, 1993 Ky. LEXIS 167 ( Ky. 1993 ).

Where ALJ determined that claimant’s depressed FEV1 values were caused by asthma and that claimant had not shown that his depressed FVC values were caused by pneumoconiosis, claimant’s burden on appeal was to show that the evidence in his favor was so overwhelming that a finding in his favor was compelled. Because there was no compelling evidence that exposure to coal dust caused either of the depressed spirometric values, the Board properly affirmed the decision of the ALJ. Arch on N. Fork v. Campbell, 865 S.W.2d 312, 1993 Ky. LEXIS 167 ( Ky. 1993 ).

This section, while creating irrebuttable presumptions regarding the degree of occupational disability, does not “relieve a worker seeking benefits due to coal workers’ pneumoconiosis of the burden of proving that the exposure to coal dust which he incurred at work is the cause of the physical condition upon which his claim of occupational disability is based.” Mabe v. H & P Coal Co., 878 S.W.2d 812, 1994 Ky. App. LEXIS 76 (Ky. Ct. App. 1994).

Worker failed to carry his burden of proving that he was entitled to a finding of a greater disability than that of having a permanent, partial disability of 13 percent with a 2-multiplier, as was found by the Administrative Law Judge (ALJ), after the worker was injured lifting a patient while working as a nursing assistant, because the ALJ’s decision, which relied upon the independent medical exam of a neurosurgeon, that the worker could return to medium duty work based on the lack of post-surgical neurological findings was not so unreasonable that it was erroneous as a matter of law, particularly considering the worker’s age and his trainability for different work. Adams v. NHC Healthcare, 2005 Ky. App. LEXIS 205 (Ky. Ct. App.), sub. op., 2005 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. Sept. 23, 2005), aff'd, 199 S.W.3d 163, 2006 Ky. LEXIS 201 ( Ky. 2006 ).

23. Spirometric Test.

It is apparent when reviewing the American Medical Association’s Guides to the Evaluation of Permanent Impairment, upon which the legislature relied in drafting this section and KRS 342.316 , that depressed spirometric test values may measure respiratory impairment caused by factors other than exposure to coal dust. Therefore, in a claim for benefits pursuant to subdivision (1)(b) of this section the claimant must prove not only that his spirometric test results indicate the requisite degree of respiratory impairment, he must also prove that his exposure to coal dust was a significant factor in causing the impairment. Newberg v. Reynolds, 831 S.W.2d 170, 1992 Ky. LEXIS 71 ( Ky. 1992 ).

Considering the plain meaning of subdivision (2) of this section, the fact that spirometric test values are affected by the subject’s effort, and the apparent attempt by the legislature to incorporate more objective standards for the award of benefits, the legislature clearly intended for none but the highest forced vital capacity (FVC) value and the highest forced expiratory volume in one minute (FEV1) value to be considered in determining the level of benefits to be awarded. Wright v. Hopwood Mining, 832 S.W.2d 884, 1992 Ky. LEXIS 88 ( Ky. 1992 ).

When considering subsection (2) of this section, KRS 342.316 (2)(b)2.b. (now (3)(b)2.), and the American Medical Association’s guidelines, it appears that the legislature intended that all reported spirometric test values be used to determine the level of benefits to award. The administrative law judge is to consider the totality of all valid and reliable spirometric tests performed on employees. In this case, the values exceeded 80 percent of employee’s predicted normal capacity, and his claim was limited to the benefits provided by subsection (1)(a) of this section. Watkins v. Ampak Mining, Inc., 834 S.W.2d 699, 1992 Ky. App. LEXIS 167 (Ky. Ct. App. 1992) (Decision prior to 1996 (1st Ex. Sess.) of this section and KRS 342.316 ).

While the administrative law judge (ALJ) has the discretion to use either the forced vital capacity (FVC) or forced expiratory volume in one second (FEV1) test category, it appears from subsection (2) of this section that the legislature intended for the ALJ to use the single highest value from the chosen category to determine respiratory impairment. If the highest value is at least 55 percent but less than 80 percent of the predicted normal, a claimant qualifies for benefits under subsection (1)(b) of this section. Watkins v. Ampak Mining, Inc., 834 S.W.2d 699, 1992 Ky. App. LEXIS 167 (Ky. Ct. App. 1992).

The conjunctive “or” in subsection (2) of this section allows recovery if the largest volume for either FVC or FEV1 is less than 80 percent. Beale v. Highwire, Inc., 843 S.W.2d 898, 1992 Ky. App. LEXIS 6 (Ky. Ct. App. 1992).

An administrative law judge (ALJ) properly recalculated claimant’s spirometric performance where the ALJ did not conduct his own medical evaluation of claimant’s, nor did he modify the volume measurements obtained by the physicians but merely calculated claimant’s lung functions according to the predicted norms provided for one of his age and height in the AMA’s guidelines. Beale v. Highwire, Inc., 843 S.W.2d 898, 1992 Ky. App. LEXIS 6 (Ky. Ct. App. 1992).

Where claimant’s height was apparently incorrectly measured by physician, and tests were done while claimant was 59, but claimant last worked at the age of 60, there was nevertheless no justification for recalculation of spirometric test values, where exam was performed at claimant’s request, where claimant was the party that placed physician’s report in evidence, and where claimant had the opportunity during deposition to question the accuracy of physician’s measurement. Varney v. Newberg, 860 S.W.2d 752, 1993 Ky. LEXIS 115 ( Ky. 1993 ).

An administrative law judge may not pick and choose among the height measurements reported by the various physicians and then recalculate the percent of normal represented by their reported spirometric values, substituting the chosen height for that reported by each physician. Newberg v. Price, 868 S.W.2d 92, 1993 Ky. LEXIS 130 ( Ky. 1993 ).

Administrative law judge did not have the discretion to choose pre-bronchodilator or post-bronchodilator tests results in a workers’ pneumoconiosis claim as both pre-bronchodilator and post-bronchodilator results are contemplated as valid predictors of respiratory impairment. Fields v. Carbon River Coal Co., 920 S.W.2d 880, 1996 Ky. App. LEXIS 64 (Ky. Ct. App. 1996).

Where three of four doctors diagnosed claimant to be suffering from pneumoconiosis and found the FVC and FEV1 values relating to lung capacity at between 55% and 80%, but the fourth doctor found no evidence of pneumoconiosis and reported both FVC and FEV1 values above 80%, the administrative law judge erroneously ignored the fourth doctor’s findings in awarding “tier two” pneumoconiosis benefits; since fourth doctor based his findings on an incorrect height measurement of claimant, the administrative law judge should have recalculated the doctor’s values using the correct, stipulated height measurement. Asher v. Blue Diamond Coal Co., 878 S.W.2d 27, 1994 Ky. App. LEXIS 64 (Ky. Ct. App. 1994).

A claimant is not required to establish that both his highest FVC and FEV1 values are less than 80% of predicted normals. If either the largest FVC value or the largest FEV1 value is 55% or more but less than 80% of the predicted normal value, a claimant may qualify for benefits under subsection (1)(b) of this section. Asher v. Blue Diamond Coal Co., 878 S.W.2d 27, 1994 Ky. App. LEXIS 64 (Ky. Ct. App. 1994).

Both pre-bronchodilator and post-bronchodilator spirometric testing used to calculate forced expiratory volume (FVC) and forced expiratory volume in one second (FEV1) values are equally instructive in determining a workers’ respiratory impairment under state’s statutory scheme. Fields v. Carbon River Coal Co., 920 S.W.2d 880, 1996 Ky. App. LEXIS 64 (Ky. Ct. App. 1996).

The claimant was entitled to the entry of a finding of respiratory impairment and to a consideration of the merits of his assertion that he was entitled to an award pursuant to subsection (1)(d) where (1) he sought benefits under that subsection and made a prima facie showing of both the existence of a respiratory impairment and a progression of the impairment, and (2) when the merits of the reopening were considered, the highest spirometric values in evidence demonstrated a respiratory impairment. Big Elk Creek Coal Co. v. Miller, 47 S.W.3d 330, 2001 Ky. LEXIS 96 ( Ky. 2001 ).

Employee’s claim for coal worker’s pneumoconiosis was properly denied because, although the employee suffered from the disease, the spirometric test values were above 80 percent of the predicted; because the employee failed to show that the spirometric tests were not valid, the alternative method for determining respiratory impairment was not available. Webster County Coal Corp. v. Lee, 125 S.W.3d 310, 2003 Ky. App. LEXIS 212 (Ky. Ct. App. 2003).

24. Interpretation of X-Rays.

It is evident that the Legislature was precise in setting forth the standards of proof required in a coal workers’ pneumoconiosis claim pursuant to subdivision (1)(b) of this section. A claimant must prove that he has contracted pneumoconiosis and that the disease results from a work-related exposure to coal dust. While the diagnosis of coal-worker’s pneumoconiosis, based on reading of a claimant’s X-rays, is dependent on the subjective interpretation of those X-rays by the radiologist, the legislature prescribed both the standards for acceptable X-rays and the classification system to be used in interpreting them. Newberg v. Reynolds, 831 S.W.2d 170, 1992 Ky. LEXIS 71 ( Ky. 1992 ).

From an examination of this section and KRS 342.316(2)(b) (now (3)) it is apparent that the legislature, in enacting these provisions, sought to establish more precise and more objective standards of proof for a coal workers’ pneumoconiosis claim than was previously the case. The resulting scheme has decreased the subjective element in reading a claimant’s X-rays by prescribing consistent standards for acceptable X-rays, and by prescribing the classification system to be used in interpreting them. Similarly, the degree of a claimant’s occupational disability is established by statute and is based on his degree of respiratory impairment, as well as on the classification of his X-rays and not on a subjective determination of occupational disability as was previously the case. Wright v. Hopwood Mining, 832 S.W.2d 884, 1992 Ky. LEXIS 88 ( Ky. 1992 ).

Where employee’s claim was fatally flawed because he presented only one x-ray as proof, decision for employee was nevertheless reinstated because employer never raised the issue in the initial proceeding. Webb v. Wolf Creek Collieries, 859 S.W.2d 129, 1993 Ky. App. LEXIS 97 (Ky. Ct. App. 1993).

In view of the language of this section, positive ILO x-ray reports, when coupled with evidence of at least the minimum overall work-related exposure to coal dust as set forth in 342.316(3)(b) (now (4)(b)), would support, but would not necessarily compel, an award of retraining incentive benefits. Scorpio Coal Co. v. Harmon, 864 S.W.2d 882, 1993 Ky. LEXIS 144 ( Ky. 1993 ).

A claim for retraining incentive benefits based on coal worker’s pneumoconiosis must be accompanied by two chest x-rays and the reports thereof. Scorpio Coal Co. v. Harmon, 864 S.W.2d 882, 1993 Ky. LEXIS 144 ( Ky. 1993 ).

25. Definition of Terms.

The terms “functional impairment” and “occupational disability” are not synonymous, but have separate and distinct meanings for compensation purposes. Newberg v. Garrett, 858 S.W.2d 181, 1993 Ky. LEXIS 85 ( Ky. 1993 ).

26. Presumption of Disability.

Unlike claims controlled by KRS 342.730 , in which occupational disability is determined according to the criteria of KRS 342.0011 , claims controlled by subdivision (1)(b) of this section are subject to a presumption of occupational disability. Newberg v. Garrett, 858 S.W.2d 181, 1993 Ky. LEXIS 85 ( Ky. 1993 ).

27. Total Disability.

The performance of occupational disability due to coal workers’ pneumoconiosis contained in subdivision (1)(b) of this section is based solely on the worker’s pulmonary impairment and not on his actual occupational disability; therefore, an inference that a worker is totally, occupationally disabled, simply because the injury and pneumoconiosis awards equal or exceed 100%, is not warranted. Newberg v. Garrett, 858 S.W.2d 181, 1993 Ky. LEXIS 85 ( Ky. 1993 ).

Where the administrative law judge made a specific finding that claimant was not totally, occupationally disabled and where that specific finding was supported by substantial evidence and claimant produced no compelling evidence to the contrary, claimant was not entitled to permanent, total, occupational disability benefits even though his combined disability awards exceed 100%. Newberg v. Garrett, 858 S.W.2d 181, 1993 Ky. LEXIS 85 ( Ky. 1993 ).

28. 1990 Amendment to KRS 342.730.

The 1990 amendment to KRS 342.730(3) substituting the word “chapter” for “section” applies to income benefits pursuant to this section which arose on or after October 28, 1987. Bowling v. Special Fund, 878 S.W.2d 22, 1994 Ky. LEXIS 69 ( Ky. 1994 ).

Widow of deceased worker, who was entitled to benefits under subdivision (1)(d) of this section, was not precluded from obtaining survivor’s benefits even though prior to July, 1990, such benefits were not authorized when award was made pursuant to this section, as the effect of the 1990 amendment to KRS 342.730 was to authorize such survivor’s benefits in claims arising under this section, where worker died prior to amendment and worker’s compensation claim was pending. Williamson v. Island Creek Coal Co., 899 S.W.2d 499, 1995 Ky. App. LEXIS 94 (Ky. Ct. App. 1995).

29. Settlement.

A settlement between a worker and his or her employer does not necessarily require participation by the Kentucky Coal Workers’ Pneumoconiosis Fund; where the participation of the fund is sought, the employer must certify that the award complies with the requirements of subdivision (1)(a). Golden Oak Mining, Co., L.P. v. Kentucky Coal Workers' Pneumoconiosis Fund, 19 S.W.3d 99, 2000 Ky. LEXIS 57 ( Ky. 2000 ).

Although an approved agreement is binding on the parties, the Kentucky Coal Workers’ Pneumoconiosis Fund may not be required to participate in a settled retraining incentive benefit (RIB) claim unless there is prima facie medical evidence of record which would authorize a RIB award. Golden Oak Mining, Co., L.P. v. Kentucky Coal Workers' Pneumoconiosis Fund, 19 S.W.3d 99, 2000 Ky. LEXIS 57 ( Ky. 2000 ).

Cited in:

Newberg v. Slone, 846 S.W.2d 694, 1992 Ky. LEXIS 188 ( Ky. 1992 ); Jones v. Newberg, 890 S.W.2d 284, 1994 Ky. LEXIS 149 ( Ky. 1994 ); Pikeville Coal Company/Chisholm Coal Co. v. Sullivan, 895 S.W.2d 574, 1995 Ky. LEXIS 42 ( Ky. 1995 ); King Coal Co. v. Overton, 907 S.W.2d 171, 9097 S.W.2d 171, 1995 Ky. App. LEXIS 168 (Ky. Ct. App. 1995); Spurlin v. Adkins, 940 S.W.2d 900, 1997 Ky. LEXIS 34 ( Ky. 1997 ); Begley v. Mountain Top, 968 S.W.2d 91, 1998 Ky. LEXIS 77 ( Ky. 1998 ); Cain v. Lodestar Energy, Inc., 302 S.W.3d 39, 2009 Ky. LEXIS 71 ( Ky. 2009 ); Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ); Lewis v. Ford Motor Co., 363 S.W.3d 340, 2012 Ky. LEXIS 31 ( Ky. 2012 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Jones, Kentucky Workers’ Compensation — Disability or Social Security, Volume 52, No. 4, Fall 1988 Ky. Bench & B. 29.

Jones, Occupational Disease — Six Years Later, Vol. 58, No. 1, Winter 1944, Ky. Bench & Bar 7.

Terry and Edens, Workers’ Compensation Procedural Changes — An ALJ Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 12.

Schabell, 1994 Workers’ Compensation Changes — A Plaintiff’s Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 17.

Kentucky Law Journal.

Murchison, Treating Physicians as Expert Witnesses in Compensation Systems: The Public Health Connection, 90 Ky. L.J. 891 (2001-02).

Northern Kentucky Law Review.

King, Workers’ Compensation Update 1992-1993, 21 N. Ky. L. Rev. 329 (1994).

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

342.734. Mandated administrative regulations on medical services.

  1. The commissioner shall promulgate administrative regulations pursuant to KRS Chapter 13A:
    1. Establishing the form and content of a statement for services;
    2. Specifying the manner in which the employee may designate and change the designation of physicians;
    3. Requiring selection of gatekeeper physicians;
    4. Requiring reports from providers on the condition of the employee; and
    5. Establishing procedures by which disputes relative to the necessity, effectiveness, frequency, and cost of medical services shall be resolved.
  2. Pending the effective date of administrative regulations promulgated by the commissioner, all administrative regulations heretofore promulgated by the Workers’ Compensation Board pertaining to these matters shall remain in effect, it being determined that those administrative regulations are within the statutory grant of authority, meet legislative intent, and are not in conflict with the provisions of this chapter.

History. Enact. Acts 1994, ch. 181, Part 5, § 20, effective April 4, 1994; 2010, ch. 24, § 1843, effective July 15, 2010.

342.735. Additional authority for administrative regulations on expediting payment of temporary total disability benefits, use of managed care, and expediting payment for and resolution of disputes concerning medical benefits.

  1. The commissioner shall promulgate administrative regulations to expedite the payment of temporary total disability and medical expense benefits.
  2. The commissioner may promulgate administrative regulations incorporating managed care intended to reduce costs or to speed the delivery or payment of medical services to employees receiving medical and related benefits under this chapter.
  3. The commissioner shall promulgate administrative regulations pursuant to KRS Chapter 13A establishing an expedited method for resolving medical issues prior to the filing of a claim with the Department of Workers’ Claims. The administrative regulations shall permit an employee or other interested party, prior to the filing of a claim, to request a determination by an administrative law judge on medical issues relating to the reasonableness or appropriateness of the proposed medical care or relating to the obligation of the employer or the employer’s insurance carrier to make payment of contested medical bills. However, the employee has the burden of proof to show the medical expenses are related to the injury, reasonable and necessary prior to an application of benefits being filed and before an award or order of benefits. Thereafter, the burden is upon the employer. The respondent to the moving party shall be given ten (10) days to answer a request for an expedited determination of medical issues, and the administrative law judge shall issue a ruling within seven (7) days thereafter. The interested parties shall be provided a form to provide to the medical care provider and the completed form filed with the department and served upon the respondent shall initiate the time for response and determination.

History. Enact. Acts 1980, ch. 104, § 17, effective July 15, 1980; 1994, ch. 181, Part 5, § 21, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 67, effective December 12, 1996; 2000, ch. 514, § 32, effective July 14, 2000; 2010, ch. 24, § 1844, effective July 15, 2010.

Research References and Practice Aids

Kentucky Bench & Bar.

Jones, A Defense Perspective of the Kentucky Workers’ Compensation Reform Legislation (House Bill 928), Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 20.

342.740. Determination of average weekly wage — Adjustment in weekly maximum and minimum income benefits for disability.

  1. For the purposes of this chapter, the average weekly wage of the state shall be determined by the commissioner as follows: On or before September 1 of each year, the total wages reported by subject employers under the Kentucky Unemployment Insurance Law for the preceding calendar year shall be divided by the average monthly number of insured workers (determined by dividing the total number of insured workers reported for the preceding year by twelve (12). The average annual wage thus obtained shall be divided by 52 and the average weekly wage thus determined rounded to the nearest cent. This average weekly wage shall be certified to the commissioner by the Education and Workforce Development Cabinet in a manner prescribed by the commissioner by administrative regulation. The average weekly wage as so determined shall be applicable for the full period during which income or death benefits are payable, when the date of occurrence of injury or of disablement in the case of disease, or of death, falls within the calendar year commencing January 1 following the September 1 determination.
  2. Whenever a change in the average weekly wage of the state is of an amount that increases or decreases the minimum weekly income benefits for total disability or death by $1 or more, or the maximum weekly income benefits for total disability or for death by $2 or more, computed in each case and rounded to the nearest dollar, an adjustment in those minimums or maximums which are affected in the requisite amount by the change in the average weekly wage of the state shall be made which will reflect the increase or decrease, but no change in these limitations shall otherwise be made.

History. Enact. Acts 1972, ch. 78, § 15; 1974, ch. 74, Art. VI, § 107(14); 1980, ch. 104, § 16, effective July 15, 1980; 1994, ch. 181, Part 15, § 96, effective April 4, 1994; 1996, ch. 271, § 25, effective July 15, 1996; 2006, ch. 211, § 161, effective July 12, 2006; 2009, ch. 11, § 83, effective June 25, 2009; 2010, ch. 24, § 1845, effective July 15, 2010.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Application.
  3. Legislative Intent.
  4. Type of Disability.
  5. Calculation of Benefits.
  6. — Credit to Employer.
  7. Minimum Payments.
  8. — Dependents.
  9. Most Favorable Average Wage.
1. Constitutionality.

The interpretation of this section and KRS 342.730 , prior to the 1976 amendment of the latter, to allow minimum weekly benefits for permanent, partial disability was not unconstitutional. Yocum v. Gantley, 566 S.W.2d 176, 1978 Ky. App. LEXIS 517 (Ky. Ct. App. 1978).

Although it may appear inconsistent that the legislators of this Commonwealth would allow a minimum recovery for total disability and yet not allow it in a case which resulted in the death of a worker who supports one or more dependents, they have done so. Mills v. Vaughn, 581 S.W.2d 29, 1979 Ky. App. LEXIS 405 (Ky. Ct. App. 1979).

2. Application.

Since the Legislature has deferred black lung benefit increases to claimants as long as there is a federal black lung program applicable to state miners, a claimant was not entitled to the increased benefits for that occupational disease as provided for under this section which had not gone into effect because the federal program had not expired nor had the Secretary of Labor listed the state as providing adequate coverage for pneumoconiosis. Fugate v. United States Steel Corp., 528 S.W.2d 691, 1975 Ky. LEXIS 75 ( Ky. 1975 ).

3. Legislative Intent.

In discerning the intent of the Legislature, it is not possible to reconcile the words “minimum weekly income benefits for death” contained in subsection (2), with KRS 342.750 , the specific statute setting forth the benefits to be paid dependents in the event of a death of an employee from a work-related incident. Riddle v. Scotty's Dev., Inc., 7 S.W.3d 385, 1999 Ky. App. LEXIS 116 (Ky. Ct. App. 1999).

4. Type of Disability.

The minimum worker’s compensation limitation on weekly income benefits applies not only to cases of total disability but also to benefits to be paid for partial disability. Apache Coal Co. v. Fuller, 541 S.W.2d 933, 1976 Ky. LEXIS 28 ( Ky. 1976 ).

5. Calculation of Benefits.

Where there was conflicting medical testimony as to the percentage of functional disability attributable to one of two injuries, the Board’s finding that the claimant was only 30% disabled by such injury and that only part of his loss of earnings was attributable thereto was based on substantial evidence and could not be set aside. Kentucky Carbon Corp. v. Dotson, 573 S.W.2d 368, 1978 Ky. App. LEXIS 612 (Ky. Ct. App. 1978).

Disability is defined and paid for on the loss of earning capacity theory with a provision for entitlement to compensation based on actual wage loss theory, whichever provides higher benefits. Apache Coal Co. v. Fuller, 541 S.W.2d 933, 1976 Ky. LEXIS 28 ( Ky. 1976 ).

Where claimant’s award was $39.25 for a 20% disability, it was under the $81 maximum (60% of $135.01) set by this section and was thus proper despite contention that the amount should have been limited to 20% of the $81. C. E. Pennington Co. v. Winburn, 537 S.W.2d 167, 1976 Ky. LEXIS 65 ( Ky. 1976 ).

The Worker’s Compensation Board does not have jurisdiction to make an award for a fixed sum and provide additionally that any future court determinations concerning the correct method of computing the award beneficial to claimant shall automatically be retroactive to the date of the award. Peabody Coal Co. v. Croxton, 593 S.W.2d 105, 1980 Ky. App. LEXIS 294 (Ky. Ct. App. 1980).

The proper method of calculating weekly workers’ compensation benefits under this section is to multiply the average weekly wage times the statutory percentage times the percentage of disability rather than reducing the figure derived by multiplying the average weekly wage times the statutory percentage, if the result is greater than the maximum benefit provision, and then multiplying times the percentage of disability. General Electric Co. v. Steenbergen, 610 S.W.2d 907, 1980 Ky. App. LEXIS 405 (Ky. Ct. App. 1980).

6. — Credit to Employer.

Under former subsection (1) of this section, employer was entitled to credit of $12.35 which reflected amount necessary to bring award of $16.65 per week up to the statutory minimum amount of $29.00 per week, since actual income benefit payable by reason of employee’s second injury was $26.48, of which one-half was payable by the employer, thus the total award of $43.13 per week from both injuries exceeded the minimum statutory weekly payment, obviating any reason to continue the additional $12.35 per week necessary to raise the first award to the minimum. General Electric Co. v. Steenbergen, 610 S.W.2d 907, 1980 Ky. App. LEXIS 405 (Ky. Ct. App. 1980) (decided prior to 1980 amendment).

A dollar-for-dollar credit for voluntary payments made by an employer to a disabled worker in excess of the compensation found to be due would seem to frustrate the purpose of the compensation act that periodic payments over a statutorily set period be made, absent agreement by the parties and approval by the Board. By allowing full credit, the claimant could be deprived of many future periodic payments; for this reason, each weekly voluntary payment should be credited against each weekly workers’ compensation payment due, to the extent that the weekly voluntary payment does not exceed the weekly compensation payment. General Electric Co. v. Morris, 670 S.W.2d 854, 1984 Ky. LEXIS 237 ( Ky. 1984 ).

7. Minimum Payments.

Since its enactment in 1972, KRS 342.750 has never provided for a minimum weekly death benefit, therefore it must be assumed that since the statutory scheme previously provided for a minimum death benefit, the Legislature’s failure to include such a benefit in the replacement statute constituted a deliberate choice and reflected its intent to no longer burden the employer with a minimum benefit in the event of a worker’s death. Riddle v. Scotty's Dev., Inc., 7 S.W.3d 385, 1999 Ky. App. LEXIS 116 (Ky. Ct. App. 1999).

8. — Dependents.

The Workers’ Compensation Board had no right to raise a $13.60 award to a surviving dependent of a deceased worker to the statutory minimum that is applicable in total or partial disability cases, due to the lack of a statutory mandate to support such an order and clear statutory language allowing payments to dependents that could fall below that minimum. Mills v. Vaughn, 581 S.W.2d 29, 1979 Ky. App. LEXIS 405 (Ky. Ct. App. 1979).

This section does not provide for a minimum income benefit to be paid for each separate injury, since such an interpretation could result in a cumulation of total benefits to the point where they exceed the maximum weekly benefit and, in order to consistently apply the maximum and minimum benefit provisions, there must be a lower minimum limit which total payments must equal or exceed for any one or more injuries. General Electric Co. v. Steenbergen, 610 S.W.2d 907, 1980 Ky. App. LEXIS 405 (Ky. Ct. App. 1980).

9. Most Favorable Average Wage.

Although the Board’s finding that claimant’s hourly wage was $4.76, based on her testimony that that had been her wage at the time of her injury, was error in that the Board failed to use the formula provided for in subdivision (1) (d) of KRS 342.140 for determining the most favorable average wage of a claimant, whose wages are fixed by output, nevertheless this error was harmless where it was uncontradicted that she had made over $4.00 per hour for a year prior to the injury, an amount equal to at least $160 per week for a 40-hour week, and would be entitled to the maximum benefits provided by this section in any event, thus making further findings unnecessary. Keathley v. U. S. Shoe Co., 585 S.W.2d 386, 1979 Ky. LEXIS 273 ( Ky. 1979 ).

Cited:

Yocum v. Lester, 544 S.W.2d 234, 1976 Ky. LEXIS 22 ( Ky. 1976 ); Keefe v. O. K. Precision Tool & Die Co., 566 S.W.2d 804, 1978 Ky. App. LEXIS 535 (Ky. Ct. App. 1978); Messamore v. Peabody Coal Co., 569 S.W.2d 693, 1978 Ky. App. LEXIS 565 (Ky. Ct. App. 1978); Schulte v. Workmen’s Compensation Board, 571 S.W.2d 108, 1978 Ky. App. LEXIS 587 (Ky. Ct. App. 1978); Transport Motor Express, Inc. v. Finn, 574 S.W.2d 277, 1978 Ky. LEXIS 419 ( Ky. 1978 ); Tolson v. Pratt Bros. Coal Co., 574 S.W.2d 920, 1978 Ky. App. LEXIS 637 (Ky. Ct. App. 1978); Wells v. White, 648 S.W.2d 77, 1983 Ky. LEXIS 232 ( Ky. 1983 ); Smith v. Leeco, Inc., 897 S.W.2d 581, 1995 Ky. LEXIS 25 ( Ky. 1995 ); Realty Improvement Co. v. Raley, 194 S.W.3d 818, 2006 Ky. LEXIS 158 ( Ky. 2006 ).

Opinions of Attorney General.

A teacher may receive full sick leave and worker’s compensation benefits at the same time. OAG 72-684 .

Research References and Practice Aids

Kentucky Bench & Bar.

Jones, Kentucky Workers’ Compensation — Disability or Social Security, Volume 52, No. 4, Fall 1988 Ky. Bench & B. 29.

Jones, Occupational Disease — Six Years Later, Vol. 58, No. 1, Winter 1944, Ky. Bench & Bar 7.

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 65 Ky. L.J. 411 (1976-77).

Kentucky Law Survey: Cassis, Workmen’s Compensation, 66 Ky. L.J. 509 (1977-78).

Kentucky Law Survey, Basil, Workers’ Compensation, 69 Ky. L.J. 687 (1980-81).

Northern Kentucky Law Review.

Comments, Kentucky Workmen’s Compensation Benefits — Apportionment and Computation, 6 N. Ky. L. Rev. 91 (1979).

Jackson and Crase, A Surveyof Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

342.750. Income benefits for death — Additional lump-sum payment for deaths occurring within four years of injury.

If the injury causes death, income benefits shall be payable in the amount and to or for the benefit of the persons following, subject to the maximum limits specified in subsections (3) and (4) of this section:

    1. If there is a widow or widower and no children of the deceased, to such widow or widower 50 percent of the average weekly wage of the deceased, during widowhood or widowerhood. (1) (a) If there is a widow or widower and no children of the deceased, to such widow or widower 50 percent of the average weekly wage of the deceased, during widowhood or widowerhood.
    2. To the widow or widower, if there is a child or children living with the widow or widower, 45 percent of the average weekly wage of the deceased, or 40 percent, if such child is not or such children are not living with a widow or widower, and in addition thereto, 15 percent for each child. Where there are more than two (2) such children, the indemnity benefits payable on account of such children shall be divided among such children, share and share alike.
    3. Two (2) years’ indemnity benefits in one (1) lump sum shall be payable to a widow or widower upon remarriage.
    4. To the children, if there is no widow or widower, 50 percent of such wage for one (1) child, and 15 percent for each additional child, divided among such children, share and share alike.
    5. The income benefits payable on account of any child under this section shall cease when he dies, marries, or reaches the age of eighteen (18), or when a child over such age ceases to be physically or mentally incapable of self-support, or if actually dependent ceases to be actually dependent, or, if enrolled as a full-time student in any accredited educational institution, ceases to be so enrolled or reaches the age of 22. A child who originally qualified as a dependent by virtue of being less than 18 years of age may, upon reaching age 18, continue to qualify if he satisfies the tests of being physically or mentally incapable of self-support, actual dependency, or enrollment in an educational institution.
    6. To each parent, if actually dependent, 25 percent.
    7. To the brothers, sisters, grandparents, and grandchildren, if actually dependent, 25 percent to each such dependent. If there should be more than one (1) of such dependents, the total income benefits payable on account of such dependents shall be divided share and share alike.
    8. The income benefits of each beneficiary under paragraphs (f) and (g) above shall be paid until he, if a parent or grandparent, dies, marries, or ceases to be actually dependent, or, if a brother, sister, or grandchild, dies, marries, or reaches the age of eighteen (18) or if over that age ceases to be physically or mentally incapable of self-support, or ceases to be actually dependent.
    9. A person ceases to be actually dependent when his or her income from all sources exclusive of workers’ compensation income benefits is such that, if it had existed at the time as of which the original determination of actual dependency was made, it would not have supported a finding of dependency. In any event, if the present annual income of an actual dependent person including workers’ compensation income benefits at any time exceeds the total annual support received by the person from the deceased employee, the workers’ compensation benefits shall be reduced so that the total annual income is no greater than such amount of annual support received from the deceased employee. In all cases, a person found to be actually dependent shall be presumed to be no longer actually dependent three (3) years after each time as of which the person was found to be actually dependent. This presumption may be overcome by proof of continued actual dependency as defined in this subsection, but full payments shall not be suspended during the pendency of any proceeding to determine dependency.
  1. Upon the cessation of income benefits under this section to or on account of any person, the income benefits of the remaining persons entitled to income benefits for the unexpired part of the period during which their income benefits are payable shall be that which such persons would have received if they had been the only persons entitled to income benefits at the time of the decedent’s death.
  2. For the purposes of this section, the average weekly wage of the employee shall be taken as not more than the average weekly wage of the state as determined in KRS 342.740 . In no case shall the aggregate weekly income benefits payable to all beneficiaries under this section exceed the maximum income benefit that was or would have been payable for total disability to the deceased, including benefits to his dependents.
  3. The maximum weekly income benefits payable for all beneficiaries in case of death shall not exceed 75 percent of the average weekly wage of the deceased as calculated under KRS 342.140 , subject to the maximum limits in subsection (3) above. The maximum aggregate limitation shall not operate in case of payment of two (2) years’ income benefits to the widow or widower upon remarriage as provided under paragraph (c) of subsection (1) of this section, to prevent the immediate recalculation and payments of benefits to the remaining beneficiaries as provided under subsection (2) of this section, but the weekly income benefits as to such remaining beneficiaries shall not exceed the weekly income benefit that was or would have been payable for total disability to the deceased. The classes of beneficiaries specified in paragraphs (a), (b), and (d) of subsection (1) of this section shall have priority over all other beneficiaries in the apportionment of income benefits. If the provisions of this subsection should prevent payment to other beneficiaries of the income benefits to the full extent otherwise provided for by this section, the gross remaining amount of income benefits payable to such other beneficiaries shall be apportioned by class, proportionate to the interest of each class in the remaining amount. Parents shall be considered to be in one class and those specified in paragraph (f) of subsection (1) in another class.
  4. All relations of dependency referred to in this section shall mean dependency existing at the time of the accident to the employee or at the time his or her disability from an occupational disease began.
  5. In addition to other benefits as provided by this chapter, if death occurs within four (4) years of the date of injury as a direct result of a work-related injury, a lump-sum payment of fifty thousand dollars ($50,000) shall be made to the deceased’s estate, from which the cost of burial and cost of transportation of the body to the employee’s place of residence shall be paid. Annually, the commissioner shall compute, in accordance with KRS 342.740 , the increase or decrease in the state average weekly wage, and consistent therewith, shall adjust the amount of the lump-sum payment due under this subsection for injuries occurring in the succeeding year.
  6. All benefits awarded pursuant to this section, other than those provided in subsection (6) of this section, shall be subject to the limitations contained in KRS 342.730(4).

History. Enact. Acts 1972, ch. 78, § 16; 1976 (Ex. Sess.), ch. 26, § 2, effective January 1, 1977; 1994, ch. 181, Part 7, § 28, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 31, effective December 12, 1996; 2000, ch. 514, § 39, effective July 14, 2000; 2010, ch. 24, § 1846, effective July 15, 2010.

NOTES TO DECISIONS

  1. Purpose.
  2. Legislative Intent.
  3. Construction with Other Laws.
  4. Dependents.
  5. — Payments.
  6. — — Calculation.
  7. — Social Security Benefits.
  8. Lump-Sum Payments.
  9. Widow.
  10. Application of Exemption Statute.
1. Purpose.

To require that the $28.00 minimum weekly benefit under KRS 342.740 be maintained would go contrary to the apparent purpose of this section of relieving the state of its benefit burden as the individual comes closer to achieving an independent financial position or at least a position equal to the one he maintained before the death of the employee. Mills v. Vaughn, 581 S.W.2d 29, 1979 Ky. App. LEXIS 405 (Ky. Ct. App. 1979).

Workers’ compensation act mandates an award of income benefits to a worker who suffers death or occupational disability as a result of a work-related accident or occupational disease. Williams v. Eastern Coal Corp., 952 S.W.2d 696, 1997 Ky. LEXIS 108 ( Ky. 1997 ).

2. Legislative Intent.

Since its enactment in 1972, this section has never provided for a minimum weekly death benefit, therefore it must be assumed that since the statutory scheme previously provided for a minimum death benefit, the Legislature’s failure to include such a benefit in the replacement statute constituted a deliberate choice and reflected its intent to no longer burden the employer with a minimum benefit in the event of a worker’s death. Riddle v. Scotty's Dev., Inc., 7 S.W.3d 385, 1999 Ky. App. LEXIS 116 (Ky. Ct. App. 1999).

3. Construction with Other Laws.

In discerning the intent of the Legislature, it is not possible to reconcile the words “minimum weekly income benefits for death” contained in KRS 342.740(2), with this section, the specific statute setting forth the benefits to be paid dependents in the event of a death of an employee from a work-related incident. Riddle v. Scotty's Dev., Inc., 7 S.W.3d 385, 1999 Ky. App. LEXIS 116 (Ky. Ct. App. 1999).

When the deceased employee’s estate received benefits pursuant to KRS 342.750(6), the amount received by the estate was properly increased by 30 percent, pursuant to KRS 342.165(1), when there was evidence that the employee’s death was caused by the employer’s safety violations. Payments under KRS 342.750(6) could be considered as “compensation,” as contemplated by KRS 342.011(14) for purposes of applying the statutory increase under KRS 342.165(1). Realty Improvement Co. v. Raley, 194 S.W.3d 818, 2006 Ky. LEXIS 158 ( Ky. 2006 ).

4. Dependents.

The dependency or nondependency status of a widower is immaterial in a claim for death benefits under subdivision (1)(a) of this section. Elizabethtown Sportswear v. Stice, 720 S.W.2d 732, 1986 Ky. App. LEXIS 1505 (Ky. Ct. App. 1986).

In the absence of a specific provision within Chapter 342 regarding the revival of workers’ compensation actions after the injured worker’s death and in view of the precedent for limiting the period during which a surviving dependent’s claim could be filed the general law regarding the abatement, survival, and revival of actions should apply to workers’ compensation cases. Hammons v. Tremco, Inc., 887 S.W.2d 336, 1994 Ky. LEXIS 128 ( Ky. 1994 ).

5. — Payments.

The Workers’ Compensation Board had no right to raise a $13.60 award to a surviving dependent of a deceased worker to the statutory minimum that is applicable in total or partial disability cases, due to the lack of a statutory mandate to support such an order and clear statutory language allowing payments to dependents that could fall below that minimum. Mills v. Vaughn, 581 S.W.2d 29, 1979 Ky. App. LEXIS 405 (Ky. Ct. App. 1979).

Although it may appear inconsistent that the legislators of this Commonwealth would allow a minimum recovery for total disability and yet not allow it in a case which resulted in the death of a worker who supports one or more dependents, they have done so. Mills v. Vaughn, 581 S.W.2d 29, 1979 Ky. App. LEXIS 405 (Ky. Ct. App. 1979).

Where the employee’s work-related injury was treated by a lumbar myelogram, and her death was caused by an allergic reaction to the dye used in that procedure, the Workers’ Compensation Board should have awarded death benefits to her spouse under subdivision (1)(a) of this section. Elizabethtown Sportswear v. Stice, 720 S.W.2d 732, 1986 Ky. App. LEXIS 1505 (Ky. Ct. App. 1986).

Board properly determined that the employee’s work-related injury caused a hematoma that became infected, leading to sepsis, and the employee’s death; the determination was supported by the hospital physician’s opinion. Johnson Controls, Inc. v. Russell, 95 S.W.3d 921, 2002 Ky. App. LEXIS 1850 (Ky. Ct. App. 2002).

6. — — Calculation.

Workers’ Compensation Board committed reversible error by utilizing claimant’s actual life span, known at the time of the hearing, rather than claimant’s life expectancy, in awarding survivor’s benefits to widow for the purpose of occupation disease award. Williamson v. Island Creek Coal Co., 899 S.W.2d 499, 1995 Ky. App. LEXIS 94 (Ky. Ct. App. 1995).

7. — Social Security Benefits.

The provisions of subdivision (1)(i) of this section, when read in conjunction with subdivision (1)(e), apply only to children over the age of 18; therefore, the deceased employee’s minor children received benefits even though they were no longer “actually dependent” due to their receipt of social security benefits. Kraft, Inc. v. Turner, 748 S.W.2d 155, 1987 Ky. App. LEXIS 601 (Ky. Ct. App. 1987).

8. Lump-Sum Payments.

Since all liability to claimant was terminated by the lump-sum payment made by employer, there was nothing remaining for the Special Fund to do. Thus, the Workers’ Compensation Board was correct in holding employer solely liable and not requiring payment from the Special Fund to employer. Pennwalt Corp. v. Beale, 840 S.W.2d 830, 1992 Ky. App. LEXIS 226 (Ky. Ct. App. 1992).

Workers' Compensation Board properly concluded that interest on a lump-sum death benefit began to accrue at the time of death, as opposed to the date an administrator was appointed by the court to represent the estate in probate, where the decedent's estate came into being at the moment of his death, the employer became responsible for making the lump-sum payment to the estate at the moment of death due to a work-related injury, and the liability existed regardless of whether an administrator had been appointed. Flagship Transp. v. Estate of Keeling, 2015 Ky. App. LEXIS 142 (Ky. Ct. App. Oct. 2, 2015), aff'd, 2016 Ky. Unpub. LEXIS 57 (Ky. Aug. 25, 2016).

9. Widow.

The widow of a recipient of a workers’ compensation award is not entitled to the continued payment of benefits after the nonwork-related death of her spouse if she remarries. Layne v. Newberg, 841 S.W.2d 181, 1992 Ky. LEXIS 176 ( Ky. 1992 ).

With respect to death benefits for widows, widowers, and children, the provisions of KRS 342.075 were superseded by the enactment of this section and KRS 342.730 ; thus, a widower is entitled to benefits under subdivision (1)(a) or (b) regardless of dependency. Brusman v. Newport Steel Corp., 17 S.W.3d 514, 2000 Ky. LEXIS 59 ( Ky. 2000 ).

Where a decedent had been traveling all day making sales calls for his employer, his stopping to eat supper with his wife en route to his home was not a substantial deviation from his duties. Therefore, pursuant to KRS 342.0011(1), a fatal auto accident he was involved in after he left the restaurant occurred within the course of his employment and his wife was entitled to death benefits and unpaid medical benefits under KRS 342.750 . Abbott Labs. v. Smith, 205 S.W.3d 249, 2006 Ky. App. LEXIS 250 (Ky. Ct. App. 2006).

A widow’s workers’ compensation death benefits received as a result of the husband’s fatal work-related injury would not terminate pursuant to KRS 342.730(4) on the date that the husband would have been eligible for Social Security benefits had he lived to age 66. That view considered the widow as a wife, but since the husband was not living, the death benefits terminated on the date the widow qualified for Social Security benefits as the husband’s widow, which was age 60 pursuant to 42 USCS § 402(e). Morsey, Inc. v. Frazier, 245 S.W.3d 757, 2008 Ky. LEXIS 34 ( Ky. 2008 ).

Because a widow was 62 years old at the time of her husband’s death and qualified for Social Security benefits, she was not entitled to income benefits for purposes of KRS 342.750 . Campbell v. Hauler's Inc., 320 S.W.3d 707, 2010 Ky. App. LEXIS 156 (Ky. Ct. App. 2010), overruled in part, Tryon Trucking, Inc. v. Medlin, 586 S.W.3d 233, 2019 Ky. LEXIS 378 ( Ky. 2019 ).

Widow was not eligible to receive income benefits, but the administrative law judge held that the two-year provision contained in the first sentence of KRS 342.730(4) applied; however, the clear and unambiguous language of the statute states that the two-year provision applies to income benefits awarded to employees and is not contained in the sentence applicable to spouses and dependents, and therefore the only reasonable interpretation of the statute is that the legislature did not intend for spouses and dependents to qualify for a minimum two years of income benefits. Campbell v. Hauler's Inc., 320 S.W.3d 707, 2010 Ky. App. LEXIS 156 (Ky. Ct. App. 2010), overruled in part, Tryon Trucking, Inc. v. Medlin, 586 S.W.3d 233, 2019 Ky. LEXIS 378 ( Ky. 2019 ).

Worker's Compensation Board erred in reversing an order by an administrative law judge that awarded death benefits to a deceased worker's widow because the settlement between the employer and the worker only precluded him from asserting any future claims, the widow's right to death benefits was an independent right derived from statute, not from the rights of the worker, and the Board did not provide authority for its holding that the widow's claim was barred by the worker's settlement with the employer. Baytos v. Dollar, 2015 Ky. App. LEXIS 37 (Ky. Ct. App. Mar. 20, 2015), aff'd, 525 S.W.3d 65, 2017 Ky. LEXIS 386 ( Ky. 2017 ).

Ky. Rev. Stat. Ann. § 342.750 contemplates a wholly different scenario from Ky. Rev. Stat. Ann. § 342.730(3): death as a result of the workplace injury. This statutory mechanism shifts entitlement of benefits from the injured worker to his surviving spouse. Under the terms of the statute, if the death is truly caused by the work-related injury, the Tackett test is satisfied automatically; the spouse has a legitimate claim of entitlement to benefits. At the time of death, the surviving spouse can point to a set of benefits designated for him or her by a purposive act of the legislature. Family Dollar v. Baytos, 525 S.W.3d 65, 2017 Ky. LEXIS 386 ( Ky. 2017 ).

Text of Ky. Rev. Stat. Ann. § 342.750 is inescapable. The plain meaning is unmistakably clear that if a worker dies because of a workplace injury, the worker's surviving spouse is entitled to income benefits in the form of 50 percent of his average weekly wage. And the Supreme Court of Kentucky has previously interpreted this provision, in a manner academically favored and consistent with a majority of other jurisdictions, to create a separate cause of action for surviving spouses independent of the injured worker's claim. The Supreme Court accordingly affirms that ruling. Family Dollar v. Baytos, 525 S.W.3d 65, 2017 Ky. LEXIS 386 ( Ky. 2017 ).

Injured worker's settlement of his workers' compensation claim did not prevent his spouse from seeking death benefits where the plain text of Ky. Rev. Stat. Ann. § 342.750 clearly provided that if a worker died because of a workplace injury, the surviving spouse was entitled to income benefits in the form of 50 percent of the worker's average weekly wage, and the injured worker, although he lived long enough to settle his claim, had died as a result of his workplace injuries. Family Dollar v. Baytos, 525 S.W.3d 65, 2017 Ky. LEXIS 386 ( Ky. 2017 ).

10. Application of Exemption Statute.

Workers’ compensation death benefits were not exempt from the claims of creditors because the KRS 342.180 statutory exemption which prevented attachment by creditors of compensation paid to the worker did not apply to the funds paid pursuant to KRS 342.750(6) once paid to the estate; the purpose of the penalty aspect of the payment imposed upon the employer, as mandated by KRS 342.165 , was served when payment was made pursuant to KRS 342.750(6). There was no language that the exemption from attachment by creditors provided for in KRS 342.180 applied to the monies once paid to the estate and there was nothing that suggested the laws of inheritance controlling estates should not have applied. Williams v. Farmers Stockyard, Inc., 297 S.W.3d 586, 2009 Ky. App. LEXIS 126 (Ky. Ct. App. 2009).

Cited:

Wells v. White, 648 S.W.2d 77, 1983 Ky. LEXIS 232 ( Ky. 1983 ); Advance Aluminum Co. v. Leslie, 869 S.W.2d 39, 1994 Ky. LEXIS 12 ( Ky. 1994 ); Whittaker v. Randall Foods, 895 S.W.2d 571, 1995 Ky. LEXIS 44 ( Ky. 1995 ); Frazier v. Morsey, Inc., — S.W.3d —, 2007 Ky. App. LEXIS 17 (Ky. Ct. App. 2007); Kentucky Employers’ Mut. Ins. v. J & R Mining, Inc., 279 S.W.3d 513, 2009 Ky. LEXIS 77 ( Ky. 2009 ); Bradley v. Commonwealth, 301 S.W.3d 27, 2009 Ky. LEXIS 326 ( Ky. 2009 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Lowther and Lowther, Workplace Injuries: Safety Penalties and Workers’ Compensation Claims, Vol. 72, No. 5, September 2008, Ky. Bench & Bar 22.

Northern Kentucky Law Review.

King, Workers’ Compensation Update 1992-1993, 21 N. Ky. L. Rev. 329 (1994).

342.760. Uninsured employers’ fund.

  1. There is hereby authorized in the Labor Cabinet an uninsured employers’ fund for the purpose of making payments in accordance with the provisions of subsection (4) of this section. The secretary of the Labor Cabinet shall be the custodian of the fund, and all moneys and securities in the fund shall be held in trust by the secretary of the Labor Cabinet and shall not be considered a part of the general funds of the state.
  2. The secretary of the Labor Cabinet is authorized to disburse moneys from the fund only upon written order of the administrative law judge or the board.
  3. All amounts collected as fines and penalties under this chapter shall be paid into the uninsured employers’ fund.
  4. The uninsured employers’ fund shall be responsible for the payment of compensation when there has been default in the payment of compensation due to the failure of an employer to secure payment of compensation as provided by this chapter. Such employer shall be liable for payment into the fund of all the amounts authorized to be paid therefrom under the authority of this subsection including reimbursement of the special fund of all liability apportioned to it and for the purposes of enforcing this liability the Labor Cabinet, for the benefit of the fund, shall be subrogated to all the rights of the person receiving such compensation from the fund. This provision shall apply to all pending claims upon which a final order has not been entered.
  5. In furtherance of this purpose, the Attorney General shall appoint a member or members of his or her staff or special counsel to represent the fund in all proceedings brought to enforce claims against or on behalf of the fund. Necessary expenses for this purpose including salaries of said staff or special counsel shall be borne by the fund. The Labor Cabinet shall be responsible for the administration of the uninsured employers’ fund and shall be charged with the conservation of the assets of the fund.
  6. On December 29, 1987, the liabilities of the uninsured employers’ fund and its assets remaining in the State Treasury shall be transferred to the uninsured employers’ fund created within the Labor Cabinet pursuant to this section.

History. Enact. Acts 1972, ch. 78, § 19; 1974, ch. 74, Art. II, § 9(2); 1976, ch. 160, § 10; 1978, ch. 256, § 5, effective June 17, 1978; 1987 (Ex. Sess.), ch. 1, § 73, effective October 26, 1987; 1996 (1st Ex. Sess.), ch. 1, § 32, effective December 12, 1996; 2000, ch. 514, § 33, effective July 14, 2000; 2010, ch. 24, § 1847, effective July 15, 2010.

Compiler’s Notes.

For administration of uninsured employer’s fund see KRS 342.765 .

NOTES TO DECISIONS

  1. In General.
  2. Application.
  3. Party in Interest.
  4. Duty to Pay.
  5. Employers.
  6. — Liability of Employer.
  7. — Multiple Employers.
  8. — Insolvent Self-Insured Employers.
1. In General.

Where employer had taken no steps toward identification of himself as an employer operating under the Workers’ Compensation Law, employee who was totally and permanently disabled by a falling plank could recover workers’ compensation from the fund. Davis v. Turner, 519 S.W.2d 820, 1975 Ky. LEXIS 178 ( Ky. 1975 ).

2. Application.

The fund is not a guarantor that all benefits will be paid for work-related injuries suffered in the Commonwealth. The statutory language is plain enough, and it is applicable only to uninsured situations. Whitehead v. Davis, 692 S.W.2d 801, 1985 Ky. LEXIS 242 ( Ky. 1985 ).

This section does not apply when an employer has satisfied KRS 342.340 by providing a workers’ compensation insurance policy or by being certified by the board as a qualified, self-insured employer. Whitehead v. Davis, 692 S.W.2d 801, 1985 Ky. LEXIS 242 ( Ky. 1985 ).

In a mail fraud case under 18 USCS § 1341, which arose from defendant’s underreporting of payroll information to his workers’ compensation carriers, the district court properly used the value of the unpaid premiums and not the amount that was eventually paid out on claims to measure the amount of restitution due to the carriers under 18 USCS § 3663A; contrary to defendant’s contention that the loss would be suffered by the Commonwealth of Kentucky under KRS 342.760 , it appeared that the insurance carriers bore the risk of workers’ compensation coverage for the unreported workers under Kentucky insurance law and, thus, the underpayment of premiums caused actual loss to the carriers. United States v. Simpson, 538 F.3d 459, 2008 FED App. 0297P, 2008 U.S. App. LEXIS 17548 (6th Cir. Ky. 2008 ).

KRS 342.760 and 342.790 held the Uninsured Employers’ Fund (UEF) responsible for the uninsured employer’s entire liability for income benefits, including interest on past-due benefits, and as permitting the UEF to recover liquidated damages from the employer with interest. Bradley v. Commonwealth, 301 S.W.3d 27, 2009 Ky. LEXIS 326 ( Ky. 2009 ).

3. Party in Interest.

Where a claimant seeking disability compensation conferred the status as party in interest upon the uninsured employers’ fund by making it a defendant and asserting a right of recovery against it, the uninsured employers’ fund had standing to appeal the Circuit Court’s judgment reversing an order of the board which had denied the claim. Davis v. Baker, 530 S.W.2d 370, 1975 Ky. LEXIS 51 ( Ky. 1975 ).

Although the uninsured employers’ fund may be made a party to a board proceeding against the employer and special fund, such is not required. Davis v. Comer, 532 S.W.2d 12, 1975 Ky. LEXIS 22 ( Ky. 1975 ).

The uninsured employers’ fund cannot use claimant’s failure to make the fund a party before the Workers’ Compensation Board as a defense to claimant’s claim against the fund asserted after the Board entered a final award against employer. Davis v. Comer, 532 S.W.2d 12, 1975 Ky. LEXIS 22 ( Ky. 1975 ).

Where an estate obtained a judgment declaring that its decedent, killed while working for an uninsured employer, had fathered a child, although the Kentucky Uninsured Employers’ Fund received a copy of the complaint and would have been a proper party to the suit, since under KRS 342.760 it was liable to pay death benefits to the decedent’s children, since it failed to intervene it had no equitable basis to bring an independent action under CR 60.03 to set aside the judgment. Uninsured Employers' Fund v. Bradley, 244 S.W.3d 741, 2007 Ky. App. LEXIS 403 (Ky. Ct. App. 2007).

4. Duty to Pay.

The uninsured employer’s fund has no duty to pay until the employer either fails to pay or is found unable to pay. Yocom v. Campbell, 536 S.W.2d 470, 1976 Ky. LEXIS 82 ( Ky. 1976 ).

5. Employers.
6. — Liability of Employer.

An employer who is uninsured is directly liable to his injured employee. Davis v. Goodin, 639 S.W.2d 381, 1982 Ky. App. LEXIS 249 (Ky. Ct. App. 1982).

7. — Multiple Employers.

A default in payment of a compensation award by co-employers must be obtained against all of the employers as required by subsection (4) of this section, before liability can be placed on the uninsured employers’ fund. Davis v. Goodin, 639 S.W.2d 381, 1982 Ky. App. LEXIS 249 (Ky. Ct. App. 1982).

Pursuant to KRS 446.020(1), a default as mentioned in subsection (4) of this section must be a default of all of the employers and not just one of them before statutory liability attaches to the uninsured employers’ fund. The fund has only a secondary liability which comes into play only after execution is unsatisfied against those individuals who have primary responsibility. Davis v. Goodin, 639 S.W.2d 381, 1982 Ky. App. LEXIS 249 (Ky. Ct. App. 1982).

8. — Insolvent Self-Insured Employers.

The fund is not liable to injured employees of a self-insured employer which becomes insolvent and is unable to pay to employees the amounts agreed to in settling their claims. Whitehead v. Davis, 692 S.W.2d 801, 1985 Ky. LEXIS 242 ( Ky. 1985 ).

Cited:

Vater v. Newport Board of Education, 511 S.W.2d 670, 1974 Ky. LEXIS 506 ( Ky. 1974 ); Tri-Gem Coal Co. v. Whitaker, 661 S.W.2d 785, 1983 Ky. App. LEXIS 373 (Ky. Ct. App. 1983).

Opinions of Attorney General.

Where company failed to comply with KRS 342.340 from July 6, 1986 to January 15, 1993, claims made against it for that period may be payable through the Uninsured Employers’ Fund. OAG 93-18 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Workmen’s Compensation, 64 Ky. L.J. 307 (1975-76).

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

342.765. Administration of fund — Transfer of reimbursement funds — Reports.

  1. Notwithstanding the provisions of KRS Chapter 342 to the contrary, the office of the Attorney General shall be responsible for the administration of the uninsured employers’ fund and shall be charged with the conservation of the assets of the fund. Funds to reimburse the Attorney General’s office for expenses incurred in litigation and administration in defense of the uninsured employers’ fund shall be transferred upon request of the Attorney General’s office and approval by the secretary of the Labor Cabinet.
  2. The office of the Attorney General shall report monthly to the Interim Joint Committee on Appropriations and Revenue, the Interim Joint Committee on Labor and Industry, and the commissioner the amount of the agency fund expenditures in each month for the uninsured employers’ fund and the nature of these expenditures. In addition, the Office of the Attorney General shall report quarterly to the commissioner on the amount of funds recouped from uninsured employers.

History. Enact. Acts 1988, ch. 437, Pt. II, J, § 44(3), (4), effective April 15, 1988; 1994, ch. 181, Part 14, § 74, effective April 4, 1994; 2010, ch. 24, § 1848, effective July 15, 2010.

342.770. Determination of employer’s compliance — Recording certificate constituting a lien in favor of uninsured employer’s fund.

  1. Upon the filing of a claim the commissioner shall ascertain whether the employer, or any other person against whom a claim is filed and who is not exempt by KRS 342.630 or 342.650 , has secured payment of compensation by either securing insurance coverage or qualifying as a self-insurer pursuant to KRS 342.340 . Upon determination that any employer under this chapter has failed to comply with the provisions of KRS 342.340 , the commissioner shall record, as provided by subsection (2) of this section, a certificate prepared and furnished him or her by the general counsel showing the date on which such claim was filed, the date of the injury alleged, the name and last known address of the employer against whom it was filed, and the fact that the employer has not secured the payment of compensation as required. Upon recordation, such certificate constitutes a valid lien against the assets of the employer in favor of the uninsured employers’ fund for the whole amount which may be due as compensation. Such lien shall be superior to the lien of any mortgage or other encumbrance thereafter created and shall continue for ten (10) years from the time of such recording, unless sooner released or otherwise discharged. A copy of such certificate shall be served upon the employer by the commissioner.
  2. The certificate constituting a lien in favor of the uninsured employers’ fund shall be filed in the following offices:
    1. The office of the county clerk of the county in which the defendant employer resides.
    2. The office of the county clerk of the county in which the defendant employer has its principal place of business.
    3. The office of the county clerk in the counties where such employer’s property is located.

History. Enact. Acts 1976, ch. 160, § 1; 1978, ch. 384, § 486, effective June 17, 1978; 1987 (Ex. Sess.), ch. 1, § 57, effective January 4, 1988; 2010, ch. 24, § 1849, effective July 15, 2010.

NOTES TO DECISIONS

  1. Applicability.
  2. Particular Actions.
1. Applicability.

Lien imposed on a debtor’s property pursuant to KRS 342.770 could not be avoided under 11 USCS § 522(f) because the lien could not be characterized as one arising out of the judicial process, and the lien procedure was purely statutory. In re Newton, 402 B.R. 771, 2009 Bankr. LEXIS 653 (Bankr. W.D. Ky. 2009 ).

2. Particular Actions.

Developer could recover damages for inverse condemnation after the Kentucky Uninsured Employer’s Fund filed an invalid lien under KRS 342.770 , which resulted in termination of financing for a subdivision project. A compensable taking occurred, even though there was no legislative or regulatory action limiting the property’s use. Commonwealth v. County of Hardin Planning & Dev. Comm'n, 390 S.W.3d 840, 2012 Ky. App. LEXIS 240 (Ky. Ct. App. 2012).

Pursuant to KRS 452.400 , 411.120 , providing expansive and general jurisdiction over matters involving real property, the circuit court had jurisdiction over an inverse condemnation action seeking to recover damages that resulted from the filing of an invalid lien under KRS 342.770 . A determination had been made in the underlying workers’ compensation matter that the property owner was not the employer, and the circuit court did not invade the province of the administrative agency. Commonwealth v. County of Hardin Planning & Dev. Comm'n, 390 S.W.3d 840, 2012 Ky. App. LEXIS 240 (Ky. Ct. App. 2012).

Cited:

Whitehead v. Davis, 692 S.W.2d 801, 1985 Ky. LEXIS 242 ( Ky. 1985 ).

342.780. Joinder of uninsured employers’ fund.

A claimant may, in the original application for benefits, or any party may, by motion accompanied by proper allegations while the case is still pending, and the administrative law judge shall, upon his own motion at any time before the rendition of the final award, cause the uninsured employers’ fund to be made a party to the proceedings if it should appear that the named defendant has failed to secure the payment of compensation as required by KRS 342.340 .

History. Enact. Acts 1976, ch. 160, § 2; 1987 (Ex. Sess.), ch. 1, § 58, effective January 4, 1988; 1996 (1st Ex. Sess.), ch. 1, § 68, effective December 12, 1996; 2000, ch. 514, § 34, effective July 14, 2000.

NOTES TO DECISIONS

  1. Joinder Defined.
  2. Fund Joinder.
1. Joinder Defined.

The Workers’ Compensation Board was without authority to join the Uninsured Employers’ Fund as a party and remand the case with directions to vacate the original award and relegate worker’s claim on the ground of claimant’s “mistake” in failing to join the fund in the original proceeding. Uninsured Employers' Fund v. Fox, 862 S.W.2d 902, 1993 Ky. App. LEXIS 130 (Ky. Ct. App. 1993).

2. Fund Joinder.

Although there were initial indications that there was insurance coverage available and justified dismissal of the fund regarding the employee’s workers’ compensation award, further development of the evidence showed that the insurance carrier was not an insurer, and that the employer and staffing service where, in fact, uninsured. As a result, the fund could be rejoined in the action, pursuant to KRS 342.780 . Commonwealth v. Allen, 2013 Ky. Unpub. LEXIS 70 (Ky. Apr. 25, 2013), modified, 2013 Ky. LEXIS 475 (Ky. Aug. 29, 2013).

342.790. Award against noncomplying employer as a liquidated claim for damages — Action by Attorney General for uninsured employers’ fund.

When an award is made against an employer who:

  1. Has not secured payment of compensation by either securing insurance coverage or qualifying as a self-insurer; and
  2. Has not made a deposit of security, indemnity, or bond acceptable to the commissioner to secure the payment of compensation liability; and
  3. Has failed to make payment of compensation according to the terms of that award, the award shall constitute a liquidated claim for damages against that employer in an amount commuted to a lump sum which will equal the present value of the total sum of the probable future payments discounted at four percent (4%) true discount compounded annually on each payment, which amount is to be ascertained and fixed by the commissioner, and the commissioner shall certify the same to the Attorney General who shall forthwith institute a civil action against that employer in the name of the uninsured employers’ fund for the collection of that award. In that action, it shall be sufficient for plaintiff to set forth a copy of the award of the administrative law judge relative to the claim as certified by the commissioner and to state that there is due to plaintiff on account of the opinion, order, or award of the administrative law judge a specified sum which plaintiff claims with interest. A certified copy of the award in the claim shall be attached to the complaint and shall constitute prima facie evidence of the truth of the facts therein contained.

History. Enact. Acts 1976, ch. 160, § 3; 1987 (Ex. Sess.), ch. 1, § 59, effective January 4, 1988; 1994, ch. 181, Part 15, § 98, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 69, effective December 12, 1996; 2000, ch. 514, § 35, effective July 14, 2000; 2010, ch. 24, § 1850, effective July 15, 2010.

NOTES TO DECISIONS

  1. Application.
  2. Appeal.
  3. Private Action.
1. Application.

KRS 342.760 and 342.790 held the Uninsured Employers’ Fund (UEF) responsible for the uninsured employer’s entire liability for income benefits, including interest on past-due benefits, and as permitting the UEF to recover liquidated damages from the employer with interest. Bradley v. Commonwealth, 301 S.W.3d 27, 2009 Ky. LEXIS 326 ( Ky. 2009 ).

2. Appeal.

In a workers’ compensation dispute between the Special Fund and the Uninsured Employers’ Fund in which the former appealed from a judgment and order, the Circuit Court erred in entertaining a suit which was not ripe for adjudication; as the Uninsured Fund’s duty to pay had not yet arisen, its actions before the Workers’ Compensation Board and Circuit Court were premature. Wells v. Blair, 736 S.W.2d 346, 1987 Ky. App. LEXIS 471 (Ky. Ct. App. 1987).

3. Private Action.

While the court is authorized under this section to reduce an award to a lump sum, the statute does not specifically authorize private action on behalf of a claimant. Hereford v. Storms, 808 S.W.2d 819, 1990 Ky. App. LEXIS 172 (Ky. Ct. App. 1990).

Cited:

Whitehead v. Davis, 692 S.W.2d 801, 1985 Ky. LEXIS 242 ( Ky. 1985 ).

342.792. Consideration, reopening, and filing of claims of miners who were last exposed to hazards on certain dates — Benefits.

  1. The claim of any miner last exposed to the occupational hazards of coal workers’ pneumoconiosis between December 12, 1996, and July 15, 2002, shall nonetheless be governed by the provisions of KRS 342.732 and notwithstanding the provisions of KRS 342.125 all claims for benefits which were filed for last injurious occupational exposure to coal dust occurring between December 12, 1996, and July 15, 2002, shall be considered pursuant to the provisions of KRS 342.732 and administrative regulations promulgated by the commissioner, and closed claims, except claims dismissed for reasons other than failure to meet medical eligibility standards, may be reopened by the claimant. Income or retraining incentive benefits shall be awarded thereon as if the entitlement standards established by the amendments to KRS 342.732 were effective at the time of last exposure. Any benefits previously granted by an award or settlement shall be credited against any subsequent award or settlement and no interest shall be payable on additional benefits. A previous grant of retraining incentive benefits shall be credited only to the extent that the benefits were actually paid. All income or retraining incentive benefits greater than those which would have been awarded were not these new provisions applicable shall be paid without interest from the Kentucky coal workers’ pneumoconiosis fund, the provisions of KRS 342.1242 notwithstanding, for claims filed on or before June 30, 2017, and by the employer for claims filed after June 30, 2017.
  2. The original claim of any miner last exposed to the occupational hazards of coal workers’ pneumoconiosis prior to December 12, 1996, which was subject to a university evaluation pursuant to KRS 342.315 and was dismissed upon a finding that the miner did not prove the presence of coal workers’ pneumoconiosis radiographically may be reopened by the claimant notwithstanding the provisions of KRS 342.125 , pursuant to administrative regulations adopted by the commissioner. Income benefits may be awarded thereon pursuant to entitlement standards effective as of the date of last exposure, except the income or retraining benefits shall be paid without interest from the Kentucky coal workers’ pneumoconiosis fund, the provisions of KRS 342.1242 notwithstanding, for claims filed on or before June 30, 2017, and by the employer for claims filed after June 30, 2017.
  3. Notwithstanding the provisions of KRS 342.316(4)(a), the coal workers’ pneumoconiosis claim of any miner last exposed between December 12, 1996, and July 15, 2002, may be filed with the commissioner on or before December 12, 2003, or within the time frame prescribed by KRS 342.316(4)(a), whichever is longer. All income or retraining incentive benefits greater than those which would have been awarded were not these new provisions applicable shall be paid by the Kentucky coal workers’ pneumoconiosis fund without interest, the provisions of KRS 342.1242 notwithstanding, for claims filed on or before June 30, 2017, and by the employer for claims filed after June 30, 2017.

HISTORY: Enact. Acts 2002, ch. 340, § 4, effective July 15, 2002; 2010, ch. 24, § 1851, effective July 15, 2010; 2017 ch. 173, § 8, effective April 10, 2017; 2018 ch. 40, § 16, effective July 14, 2018.

342.794. “B” reader list.

  1. The commissioner shall maintain a list of duly qualified “B” reader physicians who are licensed in the Commonwealth and are board-certified pulmonary specialists, currently certified by the National Institute of Occupational Safety and Health (NIOSH) who have agreed to perform pulmonary examinations, interpret chest X-rays, and review other medical evidence pursuant to KRS 342.316 for a fee to be fixed by the commissioner and paid by the Kentucky coal workers’ pneumoconiosis fund or the carrier, whichever is the appropriate payment obligor, the provisions of KRS 342.1242 notwithstanding, for claims filed on or before June 30, 2017, and by the employer for claims filed after June 30, 2017.
  2. “‘B’ reader” means a physician who has demonstrated proficiency in evaluating chest roentgenograms for roentgenographic quality and in the use of the ILO classification for interpreting chest roentgenograms for pneumoconiosis and other diseases by taking and passing a specially designed proficiency examination given on behalf of the National Institute of Occupational Safety and Health (NIOSH) or by the Appalachian Laboratory for Occupational Safety and Health (ALOSH), or successors.
  3. “Board-certified pulmonary specialist” means a physician licensed in the Commonwealth who is board-certified in internal medicine with a certification in the subspecialty of pulmonary medicine by the American Board of Internal Medicine.

HISTORY: Enact. Acts 2002, ch. 340, § 5, effective July 15, 2002; 2010, ch. 24, § 1852, effective July 15, 2010; 2017 ch. 173, § 9, effective April 10, 2017; 2018 ch. 40, § 17, effective July 14, 2018.

NOTES TO DECISIONS

Cited:

Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

342.796. Notice of education and training opportunities.

  1. Notwithstanding any provisions of the KRS to the contrary, every employer engaged in the severance or processing of coal, as defined in KRS 342.0011 , at its principal office and such other locations where employees customarily report for payroll and personnel matters, shall conspicuously post a notice advising employees of the education and training opportunities available under this chapter. The notice shall include:
    1. Toll-free telephone numbers for the:
      1. Department of Workers’ Claims;
      2. Kentucky Community and Technical College System; and
      3. Kentucky Higher Education Assistance Authority;
    2. Telephone numbers for the local board of education and centers for adult education and literacy; and
    3. A list of approved education and training programs available to employees engaged in the severance or processing of coal.
  2. The notice shall be made available to all employers at no cost and upon request of the employer. The notice shall also be posted on the Web sites maintained by the Department of Workers’ Claims and the Kentucky Community and Technical College System.

History. Enact. Acts 2002, ch. 340, § 6, effective July 15, 2002; 2010, ch. 24, § 1853, effective July 15, 2010.

342.800. Application to claims — Filing under Federal Coal Mine Health and Safety Act. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 160, § 11; 1980, ch. 290, § 5, effective July 15, 1980) was repealed by Acts 1994, ch. 181, Part 16, § 102, effective April 4, 1994.

Employers’ Mutual Insurance Authority

342.801. Legislative findings and intent.

  1. The General Assembly finds and declares that:
    1. An adequate and available workers’ compensation insurance market does not exist for employers in the Commonwealth;
    2. Approximately fifty percent (50%) of the private workers’ compensation insurance market resides in the residual market mechanism for workers’ compensation;
    3. The voluntary insurance market has declined to the point that employers in the Commonwealth, who lack the financial capability to cover their own risk, have few insurance options except the residual market mechanism through which to maintain their statutorily-required workers’ compensation coverage;
    4. A lack of an adequate market for workers’ compensation insurance threatens the economic welfare of the Commonwealth and its ability to create and maintain jobs for the citizens of Kentucky;
    5. Employers in the Commonwealth and other states are required by law to provide workers’ compensation coverage to their employees and, therefore, the General Assembly has a responsibility to ensure employers an available and adequate insurance mechanism through which employers may discharge their statutory duty regarding workers’ compensation; and
    6. State funds have historically and traditionally been a viable participant in the workers’ compensation insurance market, that workers’ compensation state funds exist in twenty-five (25) states, and that at least seven (7) states have created competitive state funds since 1983.
  2. Therefore, it is the intent of the General Assembly in creating the Employers’ Mutual Insurance Authority to establish a self-supporting competitive state fund for the purpose of providing both a market of last resort for employers in the Commonwealth and another competitive source of insurance in the voluntary market through which employers may secure and maintain their workers’ compensation coverage required under this chapter.

History. Enact. Acts 1994, ch. 181, Part 12, § 39, effective April 4, 1994.

Research References and Practice Aids

Northern Kentucky Law Review.

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

342.803. Kentucky Employers’ Mutual Insurance Authority.

  1. The Kentucky Employers’ Mutual Insurance Authority is created as a nonprofit, independent, self-supporting de jure municipal corporation and political subdivision of the Commonwealth which shall be a public body corporate and politic to insure employers in the Commonwealth for workers’ compensation, employers’ liability insurance and coverage required by the Federal Coal Mine Health & Safety Act, the Jones Act, and the Longshore and Harbor Workers Act incidental to and written in conjunction with workers’ compensation. The General Assembly hereby recognizes that the operation of a competitive state fund is a unique activity for state government and that a corporate structure will best enable the authority to be managed in an entrepreneurial and business-like manner. The authority shall function in a manner similar to a governing board for a domestic mutual insurance company and shall be subject to the provisions of KRS Chapter 304 applicable to domestic mutual insurance companies, unless otherwise provided or exempted in KRS 342.801 to 342.843 .
  2. Except for initial funding for start-up, the authority shall be entirely self-supporting.
  3. The authority or its liabilities shall not be deemed to constitute a debt or a liability of the Commonwealth or a pledge of the faith and credit of the Commonwealth.
  4. The authority shall provide coverage and issue policies as an insurer in the voluntary market and as an insurer of last resort.

History. Enact. Acts 1994, ch. 181, Part 12, § 40, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 39, effective December 12, 1996; 1998, ch. 361, § 1, effective July 15, 1998.

Compiler’s Notes.

The Federal Coal Mine Health & Safety Act, the Jones Act, and the Longshore and Harbor Workers Act referred to in subsection (1) of this section are compiled as 30 USCS § 801, et seq.; former 46 USCS § 688, et seq. (see now 46 USCS §§ 30104, 30105); 33 USCS § 901, et seq.; respectively.

Opinions of Attorney General.

The general listing of the Employers’ Mutual Insurance Authority (EMIA) in KRS 12.020 as an agency related to the Labor Cabinet of the Kentucky state government does not supersede the specific terms of subsection (3) of this section, which declare that neither the EMIA nor its liabilities shall constitute a debt or liability of the Commonwealth, or a pledge of the faith and credit of the Commonwealth; consequently, should the EMIA become insolvent the Commonwealth is not obligated for EMIA’s liabilities. OAG 95-37 .

342.805. Definitions for KRS 342.801 to 342.843.

As used in KRS 342.801 to 342.843 , unless the context otherwise requires:

  1. “Authority” means the Kentucky Employers’ Mutual Insurance Authority.
  2. “Board” means the board of directors of the authority.
  3. “Insurer of last resort” means an entity that provides workers’ compensation coverage to any and all employers who comply with the provisions of KRS 342.801 to 342.843 for their business in and incidental to the Commonwealth.
  4. “Manager” means the manager of the authority.
  5. “Policyholder” means an employer in the Commonwealth or an employer with an employee or employees in the Commonwealth who has secured and maintains workers’ compensation coverage under this authority.

History. Enact. Acts 1994, ch. 181, Part 12, § 41, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 40, effective December 12, 1996.

342.807. Board of directors.

  1. The authority shall be governed by a board of directors. The board shall exercise complete jurisdiction over the authority.
  2. The board shall consist of the:
    1. Secretary of the Finance and Administration Cabinet;
    2. Secretary of the Personnel Cabinet;
    3. Secretary of the Labor Cabinet; and
    4. Seven (7) at-large members appointed by the Governor, subject to confirmation by the Senate.
  3. Any vacancy which occurs prior to the expiration of a term shall be filled by the Governor in the same manner as the initial appointment was made, and the new appointee shall serve only the remainder of the unexpired term.
  4. No person shall serve on the board who:
    1. Fails to meet or comply with the conflict of interest policies established by the board and KRS 304.24-270 ;
    2. Is not bondable;
    3. Is an employee, attorney, or contractor of a competing insurer providing workers’ compensation insurance in the Commonwealth; or
    4. Is not a resident of this Commonwealth.
  5. In making the appointments to the board, subject to Senate confirmation, the Governor shall ensure adequate representation from the major sectors of the economy and workforce in the Commonwealth.

History. Enact. Acts 1994, ch. 181, Part 12, § 42, effective April 4, 1994; 1998, ch. 361, § 2, effective July 15, 1998; 2010, ch. 24, § 1854, effective July 15, 2010.

342.809. Election of officers — Quorum — Compensation — Ex officio members of board.

  1. The board shall elect a chair and other officers it deems necessary from its members. The Governor shall make the initial appointments to the board as follows: three (3) members shall be appointed to terms that expire December 31, 1995, and four (4) members shall be appointed to terms that expire December 31, 1997. Subsequent members shall serve terms of four (4) years and shall serve until their successors are appointed and qualified.
  2. Senate confirmation of the Governor’s appointees is required in accordance with the provisions of KRS 11.160 . If a member is not confirmed by the Senate, the Governor, within thirty (30) days of the rejection, shall make another appointment. That member shall serve the remainder of the term in question and shall also be subject to confirmation should the term extend until the next regular session, or a special session which includes this subject on the call, whichever occurs earlier.
  3. Six (6) members shall constitute a quorum. The board shall meet at least quarterly and at such other times as the chair may determine. The board shall also meet upon the call of four (4) or more of the members of the board.
  4. On July 15, 1998, each member, except the secretaries of the cabinets, shall be compensated eight thousand five hundred dollars ($8,500) annually, and beginning on July 15, 1999, twelve thousand dollars ($12,000) annually. In addition, the members of the board, except the secretaries of the cabinets, shall be reimbursed for necessary travel and lodging expenses in accordance with administrative regulations promulgated by the Cabinet for Finance and Administration for state employees.
  5. A board member, except the secretaries of the cabinets, may be removed for cause by the board. Cause shall include, but not be limited to, incompetence or misconduct defined in policies or bylaws adopted by the board.

History. Enact. Acts 1994, ch. 181, Part 12, § 43, effective April 4, 1994; 1996, ch. 194, § 63, effective July 15, 1996; 1998, ch. 154, § 94, effective July 15, 1998; 1998, ch. 361, § 3, effective July 15, 1998; 1998, ch. 394, § 1, effective July 15, 1998; 2001, ch. 73, § 1, effective June 21, 2001.

Legislative Research Commission Note.

(7/15/98). This section was amended by 1998 Ky. Acts chs. 154, 361, and 394. Where these Acts are not in conflict, they have been codified together. Where a conflict exists between Acts chs. 154 and 361, Acts ch. 361, which was last enacted by the General Assembly, prevails under KRS 446.250 .

342.811. Powers and duties of board.

The board of directors of the authority shall function in a manner similar to the governing body of a mutual insurance company established pursuant to KRS Chapter 304, with all of the general corporate powers incidental thereto. The powers and duties of the board shall include, but not be limited to, the power to:

  1. Sue;
  2. Hire a manager to administer the authority in accordance with the policies and procedures of the board;
  3. Hire an internal auditor who shall serve at the pleasure of and report directly to the board on the internal operations of the authority;
  4. Adopt a corporate seal;
  5. Develop and file with the Legislative Research Commission bylaws for the operation of the authority;
  6. Develop bylaws to establish the contingent liability of the policyholders for assessment purposes required in KRS 342.823 ;
  7. Examine and adopt an annual operating budget for the authority;
  8. Serve as investment trustees and fiduciaries of the authority in accordance with the provisions of KRS Chapter 386;
  9. Incur debt in its own name and enter into financing agreements with the Commonwealth, its own agencies, or with a commercial bank, excluding the authority to issue bonds;
  10. Develop policy for the operation of the authority consistent with its mission and fiduciary responsibility;
  11. Adopt a procurement policy consistent with the provisions of KRS Chapter 45A, including competitive bidding procedures;
  12. Develop and publish an annual report to policyholders, the Governor, the General Assembly, and interested parties that describes the financial condition of the authority, including a statement of expenses, income, and actuarial soundness;
  13. Pursuant to KRS Chapter 304, determine and establish an actuarially-sound price for insurance offered by the authority, including any dividends or deviations;
  14. Pursuant to KRS 342.823 , assess policyholders;
  15. Employ a qualified firm to conduct an internal review and management or performance audit of the internal operations of the authority as needed or determined by the board, Attorney General, or Auditor of Public Accounts;
  16. Approve a personnel policy subject to the provisions of KRS 342.813 ;
  17. Approve all contracts entered into by the authority, in accordance with the bylaws and procurement policy of the board;
  18. Conduct annually an independent audit of the financial condition of the authority; and
  19. Perform all other acts necessary or convenient in the exercise of any power, authority, or jurisdiction over the authority, either in the administration or in connection with the business of the authority to fulfill the purpose of KRS 342.801 to 342.843 .

History. Enact. Acts 1994, ch. 181, Part 12, § 44, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 41, effective December 12, 1996; 1998, ch. 361, § 4, effective July 15, 1998.

342.813. Manager — Qualifications — Powers and duties — Bond.

  1. Following a nationwide search, the board shall hire a manager, subject to Senate confirmation in accordance with KRS 11.160 who shall serve at the pleasure of the board. The manager shall be compensated at a level determined by the board.
  2. The manager shall have proven successful experience for a period of at least five (5) years as an executive at the general management level in insurance operations or in the management of a state fund for workers’ compensation.
  3. The manager shall conduct the day-to-day operations of the authority for the purpose of carrying out the policies and procedures of the board. The duties of the manager include, but are not limited to:
    1. Administering all operations of the authority in accordance with the direction of the board;
    2. Recommending to the board an annual administrative budget covering the operations of the authority and, upon approval, submitting the administrative budget, financial status, and actuarial condition of the authority to the Governor and the General Assembly for their examination;
    3. Directing and controlling all expenditures of the approved budget;
    4. From time to time, upon the recommendation of an actuary, recommending to the board actuarially-sound rating plans, and the amount of dividends, if any, to be returned to policyholders;
    5. Investing the assets of the authority under the guidance of the board and in accordance with the provisions of Subtitle 7 of KRS Chapter 304;
    6. Recommending to the board and administering a system of personnel administration;
    7. Preparing and administering fiscal, payroll, accounting, data processing, and procurement procedures for the operation of the authority;
    8. Recommending to the board bylaws and uniform procedures for the management of the authority;
    9. Within the limitations of the budget, employing necessary staff personnel in accordance with the personnel policies of the board;
    10. Maintaining appropriate levels of property, casualty, and liability insurance as approved by the board to protect directors, officers, employees, and assets of the authority; and
    11. Contracting in accordance with KRS 342.811 for claims administration, safety services, legal defense, actuaries, medical providers, financial services, and other services which the manager elects to obtain outside employed staff.
  4. The manager may:
    1. Reinsure any risk or part of any risk;
    2. Cause to be inspected and audited the payrolls of policyholders or employers applying to the authority for insurance;
    3. Establish procedures for adjusting claims in accordance with this chapter; and
    4. Require policyholders to maintain an adequate deposit to provide security for periods of coverage for which premiums have not been paid.
  5. The manager shall give an official bond in an amount and with sureties approved by the board. The premium for the bond shall be paid by the authority.
  6. The provisions of KRS Chapters 18A and 64 shall not apply to the board, the manager, or the staff of the authority; however, the board shall adopt a system of personnel administration that includes benefits, grievance procedures, training and compensation.

History. Enact. Acts 1994, ch. 181, Part 12, § 45, effective April 4, 1994; 1998, ch. 361, § 5, effective July 15, 1998.

342.815. Insurance coverage provisions.

  1. The authority may provide coverage for insurance, authorized in KRS 342.803 , to any employer in the Commonwealth, and who tenders the required premium for coverage and comply with other conditions and qualifications for obtaining and maintaining coverage adopted by the authority to protect and ensure its actuarial soundness and solvency.
  2. The authority shall provide coverage to any employer who is unable to secure coverage in the voluntary market unless the employer owes undisputed premiums to a previous workers’ compensation carrier or to a workers’ compensation residual market mechanism.

History. Enact. Acts 1994, ch. 181, Part 12, § 46, effective April 4, 1994.

342.817. Rating plans, rates, and underwriting standards for different classes of risks — Competitive nature and filing requirement for rates — Annual report on status of surplus.

  1. The authority, through its board and manager, shall establish separate rating plans, rates, and underwriting standards for different classes of risks for the authority.
  2. The rating plans, rates, and underwriting standards developed for the categories of risk shall be based on generally accepted actuarial practices and procedures as set forth in the Statement of Principles Regarding Property and Casualty Ratemaking of the Casualty Actuarial Society, in accordance with the actuarial standards of practice and compliance guidelines of the Actuarial Standards Board. The rates shall be actuarially sound for both the voluntary market and the market of last resort and set at levels which are expected, in the aggregate, to be sufficient to pay all workers’ compensation claims incurred by the participating employer risks and other permitted expenses of the authority. The rates for the voluntary market and the market of last resort shall be filed individually with the commissioner of the Department of Insurance on forms prescribed by the commissioner by the promulgation of administrative regulations.
  3. Multitiered premium or rating plans may be developed to provide workers’ compensation coverage to insureds in the Commonwealth.
  4. The manager shall develop statistical and other information as necessary to distinguish its writings in the voluntary market, and its writings as a market of last resort.
  5. The rates established by the authority for its policyholders shall be based only on Kentucky loss experience data, except that other loss experience data may be utilized as a supplement to Kentucky data if supplemental or additional data are necessary to establish statistical credibility of an employment classification.
  6. Any and all rates, whether for the voluntary market or the market of last resort, established by the board are deemed competitive and shall be filed with the commissioner of insurance in accordance with KRS Chapter 304 in the same manner as any other mutual insurance company writing workers’ compensation in the Commonwealth.
  7. Notwithstanding any provision of KRS Chapter 304 to the contrary, the surplus requirements for mutual insurance companies in the Commonwealth shall not apply to the authority until the authority has been in operation for eighty-four (84) months, unless modified by the General Assembly. In addition to other reporting requirements in KRS 342.809 and 342.821 , the authority shall report to the Labor and Industry Committee of the General Assembly, no later than October 31 of each year, on the status of its efforts to build and maintain a surplus as required by KRS Chapter 304.

History. Enact. Acts 1994, ch. 181, Part 12, § 47, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 42, effective December 12, 1996; 2010, ch. 24, § 1855, effective July 15, 2010; 2010, ch. 166, § 15, effective July 15, 2010.

Legislative Research Commission Note.

(7/15/2010). This section was amended by 2010 Ky. Acts chs. 24 and 166, which do not appear to be in conflict and have been codified together.

(7/15/2010). References to the “Office of Insurance” and the “executive director” of insurance in subsection (2) of this section, as amended by 2010 Ky. Acts ch. 166, sec. 15, have been changed in codification to the “Department of Insurance” and the “commissioner” of insurance, respectively, to reflect the reorganization of certain parts of the Executive Branch, as set forth in Executive Order 2010-535 and confirmed by the General Assembly in 2010 Ky. Acts ch. 24. These changes were made by the Reviser of Statutes pursuant to 2010 Ky. Acts ch. 24, sec. 1938.

(12/12/96). The reference to KRS 342.809 that was created in subsection (7) of this statute by 1996 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 42 appears to be erroneous. It seems likely that a reference to KRS 342.811 may have been intended.

342.819. Dividends.

On an annual basis, the board may declare a dividend in accordance with Subtitle 24 of KRS Chapter 304, and distribute the same in the form of premium discounts, dividends, or a combination of dividends and discounts, at its discretion, if:

  1. The funding obtained pursuant to KRS 342.829 has been repaid in full;
  2. An independent actuarial report of the prior year’s operations has been completed and reviewed by the board;
  3. The authority has met all expenses for administration and claims for the prior year; and
  4. Adequate reserves exist to pay all claims.

History. Enact. Acts 1994, ch. 181, Part 12, § 48, effective April 4, 1994.

342.821. Quarterly reports of assets and liabilities.

On a quarterly basis, the manager shall prepare a report of assets and liabilities, which shall also include a statement of condition regarding the solvency of the authority when awarded claims to date, and estimated initial claims not reported, are taken into account. This report shall be a public record and shall be provided to the board, the Governor, and the Legislative Research Commission.

History. Enact. Acts 1994, ch. 181, Part 12, § 49, effective April 4, 1994.

342.823. Discounting not to be used in determining solvency — Authority’s reports — Annual statement of solvency — Circumstances permitting contract audit with certified public accountant — Discretionary levy and enforcement of assessments.

  1. In determining the solvency of the authority in regard to maintaining adequate reserves, the commissioner of insurance, the independent accountant engaged for the annual audit, and the board, in exercising its prudent stewardship, shall not utilize the practice of “discounting” the funds to reduce future liabilities, except in conformity with standards or rules promulgated by the National Association of Insurance Commissioners.
  2. The authority shall file reports required by KRS 304.3-240 .
  3. The authority shall file a report not later than March 31 of each year indicating the business done by the authority during the previous year, including a balance sheet showing assets and liabilities at the beginning and conclusion of that year. The report shall be a public record and shall be delivered to the Governor, commissioner of insurance, Auditor of Public Accounts, Attorney General, and the co-chairs of the Legislative Research Commission. Additionally, a statement of solvency shall be prepared which shall include, at a minimum:
    1. A summary of the prior quarterly reports required in KRS 342.821 ;
    2. A management projection of the future solvency status for the authority; and
    3. Any recommendations pertaining to the same.
  4. The authority shall not enter into any contract with a certified public accountant for an audit unless the Auditor of Public Accounts has declined in writing to perform the audit or has failed to respond within thirty (30) days of receipt of a written request for an audit. Any contract with a certified public accountant entered into as a result of the Auditor of Public Accounts declining to perform the audit shall specify the following:
    1. That the certified public accountant shall forward a copy of the audit report and management letters to the Auditor of Public Accounts, Attorney General, and Legislative Research Commission; and
    2. That the Auditor of Public Accounts shall have the right to review the certified public accountant’s work papers.
  5. If at any time the assets of the authority are less than its liabilities, the board may levy an assessment on its policyholders in the manner provided in Subtitle 24 of KRS Chapter 304.

History. Enact. Acts 1994, ch. 181, Part 12, § 50, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 43, effective December 12, 1996; 1998, ch. 361, § 6, effective July 15, 1998; 2010, ch. 24, § 1856, effective July 15, 2010.

342.825. Investments.

The board shall formulate and adopt an investment policy that safeguards the value of all assets and maximizes investment potential commensurate with risk and liquidity restrictions, and supervise the investment activities of the authority subject to the limitations on domestic insurance companies under KRS Chapter 304. Notwithstanding any provisions of the Kentucky Revised Statutes to the contrary, the authority may utilize the investment expertise and advice of the Office of Financial Management in the Finance and Administration Cabinet. The authority shall also retain an independent investment counsel or managers who shall be subject to standards applicable to fiduciaries responsible for safeguarding assets of a corporation.

History. Enact. Acts 1994, ch. 181, Part 12, § 51, effective April 4, 1994; 2000, ch. 46, § 30, effective July 14, 2000.

342.827. Statistical and actuarial data to be maintained.

The manager shall compile and maintain statistical and actuarial data related to the determination of proper premium rate levels, the incidence of work-related injuries, costs related to those injuries, including medical and indemnity, and other data necessary for the development of fair and equitable rates and rating plans.

History. Enact. Acts 1994, ch. 181, Part 12, § 52, effective April 4, 1994.

342.829. Funding of authority — Restrictions on use of funds.

  1. The authority shall not receive any direct state general fund appropriation.
  2. Initial funding for the authority shall be determined by the Governor and the secretary of the Finance and Administration Cabinet. Funding methods may include, but not be limited to, a loan from an existing state agency or agencies to the authority. The maximum amount borrowed from all state agencies shall not exceed seven million dollars ($7,000,000), to be repaid over a period not to exceed ten (10) years from the original loan date. The Governor shall have the authority to provide or secure additional funding necessary to maintain, for the first thirty-six (36) months of its operation, the surplus the Governor deems proper. The additional funding may come from any funds which may be expended directly by the Governor or from nonstate-agency sources and, regardless of source, shall be a loan to the authority. The rate of interest to be applied to the loan shall be one percent (1%) higher than the average for the long-term investment folder of the lending agency on the anniversary date of the original loan. The interest rate shall be adjusted annually on the anniversary date of the original loan. To minimize cash requirements and interest obligations, the loan shall be executed as a line of credit against the lending agency, so that only those funds actually required for initial start-up operations, including the establishment of a surplus and reinsurance expenses, are drawn down on an “as needed” basis.
  3. Any executive branch agency of the Commonwealth and any public corporation created by the Commonwealth, any statute to the contrary notwithstanding, may lend money to the authority subject to the terms and conditions of this section, and any loan made pursuant to this section shall not be construed as a breach or violation of fiduciary duties contained in KRS Chapter 386.
  4. Funds collected by the authority shall not:
    1. Be loaned to the Commonwealth or any instrumentality or agency thereof;
    2. Be subject to transfer to the Commonwealth or any agency or instrumentality thereof, except for repayment of the loan authorized in subsections (2) and (3) of this section; or
    3. Be expended for any other purposes than as authorized by KRS 342.801 to 342.843 and KRS 304.13-340 .

History. Enact. Acts 1994, ch. 181, Part 12, § 53, effective April 4, 1994.

342.831. Marketing and sales agents — Commissions.

  1. For marketing and sales purposes, the authority shall utilize only agents duly and legally licensed and in good standing in accordance with the provisions of KRS Chapter 304 to sell coverage provided by the authority. The authority shall not be required to appoint agents.
  2. Commissions paid for marketing or sales by an insurance agent shall be determined by the manager, subject to the approval of the board.

History. Enact. Acts 1994, ch. 181, Part 12, § 54, effective April 4, 1994; 2003, ch. 168, § 1, effective June 24, 2003.

342.833. Workplace safety program for policyholders — On-site examinations.

  1. The manager shall formulate, implement, and monitor a workplace safety program for all policyholders.
  2. The manager shall develop a written workplace accident and injury reduction plan that promotes safe working conditions and which is based upon clearly stated goals and objectives. The manager or employees of the authority shall have reasonable access to the premises of any policyholder or applicant during regular working hours.
  3. The manager or board shall refuse to insure or shall terminate the insurance of any policyholder who refuses to permit on-site examinations or who disregards or fails to comply with workplace safety goals and objectives required by the authority as conditions for obtaining and maintaining coverage.

History. Enact. Acts 1994, ch. 181, Part 12, § 55, effective April 4, 1994.

342.835. Board member, manager, or employee exempt from personal liability for official acts.

No member of the board, the manager, or any employee of the authority shall be held personally liable for any act performed or for any contract or other obligation entered into or undertaken in an official capacity, in connection with the administration, management, or conduct of the authority, its funds and other assets, its business, or other related affairs.

History. Enact. Acts 1994, ch. 181, Part 12, § 56, effective April 4, 1994.

342.837. Compliance with Executive Branch Code of Ethics — Conflicts of interest.

  1. The board, manager, and employees shall comply with the code of ethics applicable to the Executive Branch pursuant to KRS Chapter 11A.
  2. In addition to compliance with the code of ethics required in subsection (1) of this section, no member of the board shall have any direct or indirect interest in any undertaking that puts the member’s personal interest in conflict with that of the authority. A personal interest shall include, but not be limited to, an interest in a major procurement.

History. Enact. Acts 1994, ch. 181, Part 12, § 57, effective April 4, 1994.

342.839. Applicability of specified provisions of law.

  1. Notwithstanding any provision of KRS Chapter 304 to the contrary, the authority shall be exempt from participation, and shall not join, contribute financially to, nor be entitled to the protection of, any plan, pool, association, guarantee, or insolvency fund authorized or required by KRS Chapter 304.
  2. Except as provided in subsection (1) of this section, the authority shall be subject to the same assessments applicable to workers’ compensation premiums as domestic mutual insurance companies licensed to do business in the Commonwealth and governed by the provisions of Subtitle 24 of KRS Chapter 304.
  3. Notwithstanding the provisions of Subtitle 24 of KRS Chapter 304 or any other provisions of the Kentucky Revised Statutes to the contrary, the minimum number of directors and procedures required for incorporating a mutual insurance company, requirements relating to the name of a mutual insurance company, and any licensing requirements applicable to mutual insurance companies shall not apply to the authority.
  4. The authority shall be considered an insurer for purposes of KRS 342.122 and other provisions of this chapter.
  5. Notwithstanding any provision of KRS Chapter 304 to the contrary the authority shall not be subject to the provisions of Subtitle 33 or other provisions of KRS Chapter 304 that relate to the liquidation, rehabilitation, dissolution, or sale of any insurance company.

History. Enact. Acts 1994, ch. 181, Part 12, § 58, effective April 4, 1994.

342.841. Applicability of open meetings and open records provisions.

  1. The board shall comply with KRS Chapter 61 in regard to open meetings and open records in the conduct of ordinary business. In addition to the exemptions listed in KRS Chapter 61, proceedings to discuss rates, proposed rates, or anything that relates to rates if that discussion would jeopardize the competitiveness of the authority may be closed, as well as, proceedings which would provide an unfair competitive advantage to private sector competitors providing workers’ compensation coverage in the Commonwealth.
  2. All records of the authority shall be deemed open records and subject to public inspection, unless:
    1. The record is excluded from inspection under KRS Chapter 61;
    2. The record includes information that would provide an unfair competitive advantage to private sector competitors providing workers’ compensation coverage in the Commonwealth;
    3. In addition to the exemption provided by KRS 61.878(1)(c)1., the record is generated by the authority, generally recognized as confidential or proprietary, and which if openly disclosed would permit an unfair commercial advantage to competitors of the authority or other entity to which the record relates; and
    4. The record relates to a fraud investigation conducted by the authority and that does not become evidence in a criminal or civil action.

History. Enact. Acts 1994, ch. 181, Part 12, § 59, effective April 4, 1994; 1996 (1st Ex. Sess.), ch. 1, § 44, effective December 12, 1996; 1998, ch. 361, § 7, effective July 15, 1998.

Opinions of Attorney General.

While a public agency may meet in a closed session to discuss proposed or pending litigation, including topics such as litigation tactics and strategy, a final decision as to whether to litigate a particular situation cannot be made in closed session. If the Board of Directors of the Kentucky Employers’ Mutual Insurance Authority decided in a closed session to file suit in regard to a specific situation, such decision was made in violation of the Open Meetings Act. 97-OMD-96.

342.843. Monitoring of operations of authority by Attorney General and Auditor of Public Accounts — Report to General Assembly.

  1. The Attorney General and the Auditor of Public Accounts shall monitor the operations of the authority.
  2. Either the Attorney General or the Auditor of Public Accounts, or both, may make at any time any examinations or investigations, jointly or severally, of the operations, practices, management, or other matters relating to the authority as they deem necessary. Either of them shall have the power to subpoena witnesses and records for these purposes, and otherwise to compel the giving of evidence for any matter under study. The Attorney General, the Auditor of Public Accounts, or any employee authorized by either of them may require the giving of this evidence under oath and may administer the oath. Any person voluntarily providing information or evidence may be required to do so under oath administered by the Attorney General, the Auditor of Public Accounts, or any employee authorized by either of them. If any person fails or refuses to testify or furnish documentary evidence concerning any matter requested, the Franklin Circuit Court, on application of either the Attorney General or the Auditor of Public Accounts or both, may compel obedience by proceedings for contempt as in the case of disobedience of a subpoena issued from the Circuit Court or of a refusal to testify in the Circuit Court.
  3. The Attorney General and the Auditor of Public Accounts shall have without restriction:
    1. Full access to all records of the authority, except that confidential medical records of employees of insureds are available only by subpoena;
    2. Full access to all financial transactions and investigations of the authority; and
    3. The right to attend all meetings of the board and its committees.
  4. If fraud, mismanagement, illegal activity, imprudent practices, or other deficiencies are found in the operations or other practices of the authority, the Attorney General or Auditor of Public Accounts, or both shall:
    1. Recommend internal corrective action;
    2. Institute a civil action or action for injunctive relief to compel corrective action;
    3. Institute criminal proceedings against any officer or employee of the authority or any other person, as defined in KRS 446.010 , as may be necessary; or
    4. Any combination of the above listed actions or any other form of action reasonably calculated to assure efficient and honest operations of the authority and those involved with it.
  5. The Attorney General and the Auditor of Public Accounts shall report jointly to the General Assembly in January of each year in which the General Assembly convenes in an even-numbered-year regular session the results of the monitoring activities required by this section.

History. Enact. Acts 1994, ch. 181, Part 12, § 61, effective April 4, 1994; 1998, ch. 361, § 8, effective July 15, 1998; 2001, ch. 58, § 24, effective June 21, 2001.

Research References and Practice Aids

Northern Kentucky Law Review.

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

Self-Insurance Guaranty Funds

342.900. Legislative findings and declarations.

  1. The General Assembly hereby finds and declares that the establishment of self-insurance guaranty funds is a necessary component of a complete system of workers’ compensation, to make provisions for the general welfare of workers and their dependents, to relieve the consequences of any industrial injury or death, and to secure the payment of workers’ compensation benefits provided by this chapter.
  2. The General Assembly further finds and declares that provision must be made for the continuation of workers’ compensation benefits otherwise delayed or terminated due to the failure of a self-insured employer to meet obligations because of insolvency. It is for that purpose that the General Assembly establishes mechanisms requiring the establishment of three (3) distinct nonprofit, unincorporated guaranty associations, one (1) of whose members shall be composed of individually self-insured employers excluding individually self-insured coal employers and public-sector employers; one (1) shall be composed of self-insured groups created pursuant to KRS 342.350(4) and KRS 304.50-010 ; and one (1) shall be composed of individually self-insured coal operators.

History. Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 20, effective December 12, 1996; 2005, ch. 7, § 46, effective March 1, 2005.

342.902. Definitions for KRS 342.900 to 342.912.

As used in KRS 342.900 to 342.912 , unless the context requires otherwise:

  1. “Insolvent self-insurer” means either an individual self-insured employer or a self-insured group who has failed to pay compensation as a result of a declaration of bankruptcy or insolvency by a court of competent jurisdiction, and whose security deposit has been called by the commissioner, or who has failed to provide compensation and who has been issued a certificate of default by the commissioner and whose security deposit has been called by the commissioner;
  2. “Member” means a self-insured employer or self-insured group that participates in a guaranty fund created pursuant to KRS 342.900 to 342.912 ;
  3. “Guaranty fund” means one (1) of the three (3) guaranty funds established pursuant to KRS 342.900 to 342.912 ;
  4. “Directors” means the board of directors of a guaranty fund; and
  5. “Certificate of default” means a notice issued by the commissioner based upon a finding that a self-insured employer or self-insured group has failed to pay compensation required by this chapter.

History. Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 21, effective December 12, 1996; 2005, ch. 7, § 47, effective March 1, 2005; 2010, ch. 24, § 1857, effective July 15, 2010.

342.904. Exemption of public-sector self-insured employers and self-insurance groups.

Notwithstanding any other provision of law, public-sector self-insured employers or self-insurance groups are specifically exempted from the provisions of KRS 342.900 to 342.912 .

History. Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 22, effective December 12, 1996.

342.906. Guaranty funds — Required participation — Purpose — Operating procedures — Use of moneys — Liability for actions.

  1. There is created a nonprofit, unincorporated legal entity to be known as the Kentucky individual self-insurance guaranty fund to function as the guaranty fund for individually insured employers, excluding individually self-insured coal employers, to secure workers’ compensation liabilities under this chapter and pursuant to administrative regulations promulgated by the commissioner. Each noncoal, individually self-insured employer who has qualified and been certified by the commissioner as a self-insured employer on or after March 1, 1997, shall participate as a member of the guaranty fund created pursuant to this subsection as a condition of maintaining its certificate required to be self-insured under this chapter. The commissioner shall revoke any self-insurer’s certificate and authority to be self-insured if the self-insured employer fails to maintain membership in the guaranty fund or fails to pay assessments levied by the guaranty fund created pursuant to this subsection.
  2. There is created a nonprofit, unincorporated legal entity known as the Kentucky group self-insurance fund to function as a guaranty fund for self-insured groups or associations established under KRS 342.350(4) and 304.50-010 , to secure workers’ compensation liabilities under this chapter and pursuant to administrative regulations promulgated by the commissioner of the Department of Insurance. Each self-insured group or association that is authorized to self-insure and certified by the commissioner of the Department of Insurance to self-insure on or after March 1, 1997, shall participate as a member of the guaranty fund created pursuant to the provisions of this subsection, as a condition of maintaining its authorization and certificate to self-insure. The commissioner of the Department of Insurance shall revoke any authorization and certificate to self-insure of any self-insured group or association for failure to maintain membership in the guaranty fund or failure to pay assessments levied by the guaranty fund created pursuant to the provisions of this subsection.
  3. There is created a nonprofit, unincorporated legal entity known as the Kentucky coal employers self-insurance fund to function as a guaranty fund for individually self-insured coal employers to secure workers’ compensation liabilities under this chapter and pursuant to administrative regulations promulgated by the commissioner. Each coal employer that is individually self-insured and that has been authorized and certified to self-insure on or after March 1, 1997, shall participate as a member of the guaranty fund created pursuant to the provisions of this subsection as a condition of maintaining authorization and certification to self-insure. The commissioner shall revoke a coal employer’s authority and certification to self-insure for failure to maintain membership in the guaranty fund or to pay assessments levied by the guaranty fund created pursuant to the provisions of this subsection.
  4. The guaranty funds created pursuant to this section are created for the purposes of meeting the obligations of insolvent individually self-insured employers or members of a self-insured group or association incurred while members of a guaranty fund and after exhaustion of all security, including bonds, escrow deposits, insurance, or reinsurance, required by this chapter or KRS 304.50-045 and 304.50-050 . The method of operation of each guaranty fund created pursuant to the provisions of this section shall be established by a plan of operation pursuant to administrative regulations promulgated by the commissioner.
  5. The Kentucky individual self-insurance guaranty fund and the Kentucky coal employers self-insurance guaranty fund shall each be governed by a nine (9) member board of directors who shall serve staggered terms not to exceed four (4) years, be representative of individual self-insurers, and be elected by the members of the guaranty fund. Each member of the board shall have one (1) vote. In addition to the nine (9) directors elected by the members, the commissioner of the Department of Workers’ Claims and the commissioner of the Department of Insurance, or their designees, shall be ex officio nonvoting members of the board of directors. A member of the board of directors may designate another member to act in the member’s place as though the member were acting, and the designee’s actions shall be deemed those of the member.
  6. The Kentucky group self-insurance guaranty fund shall be governed by a board of directors composed of one (1) representative of each self-insured group or association. In addition, the commissioner of the Department of Workers’ Claims and the commissioner of the Department of Insurance, or their designees, shall be ex officio nonvoting members of the board of directors. A director may designate another member to act in the member’s place, and the designee’s actions shall be deemed those of the director.
  7. Each guaranty fund created pursuant to this section shall establish bylaws and a plan of operation subject to prior approval of the commissioner, necessary to the purposes of this chapter and to carry out the responsibilities of each guaranty fund. Each guaranty fund may carry out its responsibilities directly or by contract and may purchase services and insurance and borrow funds as it deems necessary for the protection of the members and their employees.
  8. Security called by the commissioner and disbursed to the guaranty funds, and assessments made upon members, shall vest in the guaranty funds, shall not thereafter be deemed state property, and shall not be subject to appropriation by the General Assembly or any other state agency.
  9. All moneys in the individual guaranty funds, exclusive of costs reasonably necessary to conduct business, shall be used solely to compensate persons entitled to receive workers’ compensation benefits from a Kentucky member who has defaulted in performance of its workers’ compensation benefit payment obligations under this chapter.
  10. No liability shall lie, whether at law or in equity, against any director, agent, or employee of a guaranty fund created pursuant to this section, on account of any action or inaction taken by any of them in the administration of a guaranty fund.

History. Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 23, effective December 12, 1996; 2005, ch. 7, § 48, effective March 1, 2005; 2010, ch. 24, § 1858, effective July 15, 2010.

NOTES TO DECISIONS

1. Guarantor Liability.

Guarantor was immune from being sued in a negligence case by the estates of deceased coal miners because it applied for and was granted status as a self-insurer; the guarantor was a carrier because it was a self-insurer authorized to insure the employees of its subsidiaries, and it met the regulatory and statutory requirements to gain approval for being a self-insurer. Even if the guarantor did not strictly meet the definition of a carrier or self-insurer, public policy still dictated that it be granted immunity. Falk v. Alliance Coal, LLC, 2013 Ky. App. LEXIS 127 (Ky. Ct. App. Aug. 16, 2013), aff'd, 461 S.W.3d 760, 2015 Ky. LEXIS 1630 ( Ky. 2015 ).

Kentucky Coal Employers Self-Insurers Guaranty Fund was responsible for a coal miner’s survivors enhanced benefits under Ky. Rev. Stat. Ann. § 342.165(1) where Ky. Rev. Stat. Ann. §§ 342.906(3), (4), and (9) obligated the Fund to step in and meet, without qualification, the obligations of its insolvent member, i.e., the miner’s employer, the enhancement in § 342.165(1) was not a penalty subject to Ky. Rev. Stat. Ann. § 342.910(2), and § 342.910(2) did not apply to the interest on the amounts owed. McCoy Elkhorn Coal v. Sargent, 553 S.W.3d 802, 2018 Ky. LEXIS 351 ( Ky. 2018 ).

342.908. Default or insolvency of fund member — Assumption of obligations by fund — Assessments to finance funds — Limitation on income distributions — Effect of payment on liability to fund for reimbursement.

  1. The commissioner shall notify a guaranty fund if the commissioner has knowledge that any member of the guaranty fund has failed to timely pay workers’ compensation benefits required by this chapter or if a court of competent jurisdiction has declared the member to be bankrupt or insolvent.
  2. In the event of issuance of a certificate of default, the commissioner shall call all security and transfer it to the appropriate guaranty fund created pursuant to this section. The commissioner shall also immediately notify, by certified mail, the guaranty fund and order the guaranty fund to assume the workers’ compensation obligations of the member required in this chapter. The guaranty fund shall commence payment of these obligations within fourteen (14) days of receipt of notification and order of the commissioner. Payment shall be made to claimants whose entitlement to benefits can be ascertained by the guaranty fund with or without proceedings before the Department of Workers’ Claims or a court of competent jurisdiction. Upon assumption of the obligations of a member by a guaranty fund, the guaranty fund shall have the right to immediate possession of any security, and the custodian, surety, or issuer of any irrevocable letter of credit shall turn over the security, proceeds of the surety bond, or letter of credit to the guaranty fund, together with the interest that has accrued since the date of the member’s insolvency. The guaranty fund may administer payment of benefits or it may retain a third party to do so.
  3. Notwithstanding any other provision of law, any cash, securities, irrevocable letters of credit, specific excess or aggregate excess insurance proceeds, or any other security deposited or posted in accordance with this section shall be used first, when due, to pay workers’ compensation claims. After the security has been exhausted, the payment of workers’ compensation claims from member assessments may be made. Where the guaranty fund member-assessment account is used to pay workers’ compensation claims on an emergency or an interim basis, pending receipt by the guaranty fund of security which is due but not yet received, the member-assessment account shall be reimbursed for payment from the security when it is received, and the priorities stated above shall thereafter apply.
  4. To the extent necessary to secure funds for the initial establishment of each guaranty fund member-assessment account, the board of directors of each guaranty fund created pursuant to this section shall levy assessments based on the premium of each individual self-insured employer, as defined and calculated pursuant to KRS 342.0011(28), for members of the Kentucky individual self-insurers guaranty fund and for the Kentucky coal employers self-insurance guaranty fund, and KRS 342.0011(24) for the Kentucky group self-insurance guaranty fund, but no such assessments shall ever exceed, in the aggregate, from all members of a single guaranty fund, an amount in excess of one million dollars ($1,000,000) at any given time. The assessments shall be made at a maximum annual assessment of: one-half of one percent (0.5%) of the premium for each member of the Kentucky individual self-insurance guaranty fund as defined and calculated pursuant to KRS 342.0011(28); two percent (2%) of the premium for each member of the Kentucky coal employers guaranty fund as defined and calculated pursuant to KRS 342.0011(28); and three-fourths of one percent (0.75%) of the premium for each member of the Kentucky group self-insurance guaranty fund as defined and calculated pursuant to KRS 342.0011(24).
  5. The initial assessment for each guaranty fund created pursuant to this section shall be for an amount equal to five hundred thousand dollars ($500,000), to be levied and collected within a one (1) year period. There shall be no reassessments against any member unless the current balance of such guaranty fund created pursuant this section is insufficient after deducting the amount paid for or reserved for outstanding claims and for administrative and other costs in managing the guaranty fund at which point the board of directors shall raise assessments sufficient to bring the minimum amount of the guaranty fund to five hundred thousand dollars ($500,000) or such other amount not to exceed, in any event, one million dollars ($1,000,000) based upon a maximum annual assessment for each guaranty fund.
  6. A guaranty fund created pursuant to this section shall pay no dividends, rebates, interest, or otherwise distribute income from the guaranty fund to any of its members, unless the guaranty fund has the assets prescribed in subsection (5) of this section and the distributions are approved by the commissioner.
  7. The commissioner shall be provided with any relevant information by the employer, any excess insurer, any third party administrator, or any issuer of any irrevocable letter of credit, issuer of any surety bond, or custodian of any security necessary for the commissioner to carry out the commissioner’s obligations under this chapter, and the commissioner shall provide this information to the guaranty fund as necessary to carry out its obligations.
  8. The payment of benefits by a guaranty fund does not release any person or entity from any liability to the individual guaranty fund for full reimbursement.

History. Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 24, effective December 12, 1996; 2010, ch. 24, § 1859, effective July 15, 2010.

342.910. Rights and responsibilities of funds as to payments made, due, or recoverable.

  1. Each guaranty fund, by making payment of compensation under this chapter, has the same preference over the other debts of the principal or the principal’s estate as is given by law to the person directly entitled to the compensation.
  2. Notwithstanding subsection (1) of this section, each guaranty fund shall not be liable for the payment of any penalties or interest assessed for any act or omission on the part of any person, including but not limited to the penalties provided in this chapter.
  3. Each guaranty fund shall be a party in interest in all proceedings involving compensation claims against an insolvent member whose compensation obligations have been paid or assumed by the guaranty fund. The guaranty fund shall have the same rights and defenses as the insolvent individual self-insurer.
  4. Each guaranty fund shall have the right and obligation to obtain reimbursement from an insolvent self-insurer up to the amount of the self-insurer’s workers’ compensation obligations paid and assumed by each guaranty fund, including reasonable administrative and legal costs.
  5. Each guaranty fund shall have the right to bring an action against any person or entity to recover compensation paid and liability assumed by the guaranty fund, including but not limited to any excess insurance carrier of the insolvent member.

History. Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 25, effective December 12, 1996.

NOTES TO DECISIONS

1. Benefit Enhancement.

ALJ properly determined that the Kentucky Coal Employers Self-Insurance Fund was liable for a worker's compensation award, including the 30 percent benefit enhancement under Ky. Rev. Stat. Ann. § 342.165(1), where case law clearly established that an award of benefits under § 342.165(1) was increased compensation owed to the worker, not a penalty against the employer, and thus, the Fund could not rely on Ky. Rev. Stat. Ann. § 342.910(2) to exempt itself from paying the benefit enhancement. McCoy Elkhorn Coal Co. v. Sargent, 2017 Ky. App. LEXIS 619 (Ky. Ct. App.), sub. op., 2017 Ky. App. Unpub. LEXIS 954 (Ky. Ct. App. Oct. 13, 2017).

Kentucky Coal Employers Self-Insurers Guaranty Fund was responsible for a coal miner’s survivors enhanced benefits under Ky. Rev. Stat. Ann. § 342.165(1) where Ky. Rev. Stat. Ann. §§ 342.906(3), (4), and (9) obligated the Fund to step in and meet, without qualification, the obligations of its insolvent member, i.e., the miner’s employer, the enhancement in § 342.165(1) was not a penalty subject to Ky. Rev. Stat. Ann. § 342.910(2), and § 342.910(2) did not apply to the interest on the amounts owed. McCoy Elkhorn Coal v. Sargent, 553 S.W.3d 802, 2018 Ky. LEXIS 351 ( Ky. 2018 ).

342.912. Annual audit — Annual report — Deadline for establishment — Events causing fund’s liability for payment of benefits.

  1. The directors of each guaranty fund shall annually contract for an independent certified audit of the financial activities of the guaranty fund. An annual report on the financial status of the guaranty fund as of June 30 of each year shall be submitted to the commissioner and to each member.
  2. Each guaranty fund shall be established on March 1, 1997.
  3. The individual guaranty fund shall be liable for payment of benefits only for members where there has been a declaration of bankruptcy or insolvency by a court of competent jurisdiction after the date on which the guaranty fund is established, or where the commissioner has issued a certificate of default which has occurred after the date on which the guaranty fund is established.

History. Enact. Acts 1996 (1st Ex. Sess.), ch. 1, § 26, effective December 12, 1996; 2010, ch. 24, § 1860, effective July 15, 2010.

342.920. Self-insurance fund for payments to workers’ compensation claimants injured before March 1, 1997.

  1. The General Assembly finds and declares that there is a need to protect employees of workers’ compensation self-insured employers who had claims for injuries that occurred prior to the creation of the workers’ compensation self-insurance guaranty funds under this chapter. The General Assembly further finds that there may be instances in which the security of a former self-insured employer is insufficient to pay the entire workers’ compensation claim of an injured employee who was injured prior to March 1, 1997.
  2. There is hereby established the self-insurance fund for the purpose of making payments to workers’ compensation claimants injured prior to March 1, 1997, when the security of a former self-insured employer has been depleted.
    1. The commissioner shall be: (3) (a) The commissioner shall be:
      1. Authorized to disburse moneys from the fund in accordance with written orders of an administrative law judge or the board; and
      2. Responsible for administration of the fund and conservation of the assets of the fund.
    2. The commissioner may hire an administrator to oversee the payment of claims as provided in this section.
  3. Notwithstanding any provision of the Kentucky Revised Statutes to the contrary, all amounts collected after July 12, 2006, as fines and penalties under KRS 342.267 and 342.990 shall be paid into the self-insurance fund.
  4. The self-insurance fund shall be responsible for the payment of compensation when there has been a default in the payment of compensation by a self-insured employer and the security held by the Department of Workers’ Claims has been completely depleted.
  5. The Department of Workers’ Claims shall appoint an attorney on its staff or special counsel to represent the self-insurance fund in all proceedings brought to enforce claims against or on behalf of the self-insurance fund. Necessary expenses for this purpose including salaries or special counsel shall be borne by the self-insurance fund.
  6. Any party seeking reopening under KRS 342.125 or action on a claim involving the self-insurance fund shall name the self-insurance fund in its action.
    1. The Workers’ Compensation Funding Commission shall hold, invest, and reinvest the funds collected for the self-insurance fund; (8) (a) The Workers’ Compensation Funding Commission shall hold, invest, and reinvest the funds collected for the self-insurance fund;
    2. The funding commission shall have the same authority and duties with regard to the self-insurance fund as described in KRS 342.1223 ; and
    3. The funding commission shall disburse moneys of the fund as requested by the commissioner of the Department of Workers’ Claims pursuant to subsection (3) of this section.
  7. Amounts in the self-insurance fund not expended at the close of the fiscal year shall not lapse but shall be carried forward to the next fiscal year. Any interest earnings of the self-insurance fund shall become part of the fund and shall not lapse.

History. Enact. Acts 2006, ch. 245, § 1, effective July 12, 2006; 2010, ch. 24, § 1861, effective July 15, 2010.

Penalties

342.990. Penalties — Restitution.

  1. The commissioner shall initiate enforcement of civil and criminal penalties imposed in this section.
  2. When the commissioner receives information that he or she deems sufficient to determine that a violation of this chapter has occurred, he or she shall seek civil penalties pursuant to subsections (3) to (7) of this section, criminal penalties pursuant to subsections (8) and (9) of this section, or both.
  3. The commissioner shall initiate enforcement of a civil penalty by simultaneously citing the appropriate party for the offense and stating the civil penalty to be paid.
  4. If, within fifteen (15) working days from the receipt of the citation, a cited party fails to notify the commissioner that he or she intends to contest the citation, then the citation shall be deemed final.
  5. If a cited party notifies the commissioner that he or she intends to challenge a citation issued under this section, the commissioner shall cause the matter to be heard as soon as practicable by an administrative law judge and in accordance with the provisions of KRS Chapter 13B. The burden of proof shall be upon the attorney representing the commissioner to prove the offense stated in the citation by a preponderance of the evidence. The parties shall stipulate to uncontested facts and issues prior to the hearing before the administrative law judge. The administrative law judge shall issue a ruling within sixty (60) days following the hearing.
  6. A party may appeal the ruling of the administrative law judge to the Franklin Circuit Court in conformity with KRS 13B.140 .
  7. The following civil penalties shall be applicable for violations of particular provisions of this chapter:
    1. Any employer, insurer, or payment obligor subject to this chapter who fails to make a report required by KRS 342.038 within fifteen (15) days from the date it was due, shall be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense;
    2. Any employer, insurer, or payment obligor acting on behalf of an employer who fails to make timely payment of a statement for services under KRS 342.020(4) without having reasonable grounds to delay payment may be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense;
    3. Any person who violates KRS 342.020(12), 342.035(2), 342.040 , 342.340 , 342.400 , 342.420 , or 342.630 shall be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense. With respect to employers who fail to maintain workers’ compensation insurance coverage on their employees, each employee of the employer and each day of violation shall constitute a separate offense. With respect to KRS 342.040 , any employer’s insurance carrier or other party responsible for the payment of workers’ compensation benefits shall be fined for failure to notify the commissioner of a failure to make payments when due if a report indicating the reason payment of income benefits did not commence within twenty-one (21) days of the date the employer was notified of an alleged work-related injury or disease is not filed with the commissioner within twenty-one (21) days of the date the employer received notice, and if the employee has not returned to work within that period of time. The date of notice indicated in the report filed with the department pursuant to KRS 342.038 (1), shall raise a rebuttable presumption of the date on which the employer received notice;
    4. Any person who violates any of the provisions of KRS 342.165(2), 342.335 , 342.395 , 342.460 , 342.465 , or 342.470 shall be fined not less than two hundred dollars ($200) nor more than two thousand dollars ($2,000) for each offense. With respect to KRS 342.395 , each required notice of rejection form executed by an employee or potential employee of an employer shall constitute a separate offense;
    5. Any person who fails to comply with the data reporting provisions of administrative regulations promulgated by the commissioner pursuant to KRS 342.039 , or with utilization review and medical bill audit administrative regulations promulgated pursuant to KRS 342.035(5), shall be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each violation;
    6. Except as provided in paragraph (g) of this subsection, a person who violates any of the provisions of KRS 342.335 (1) or (2) where the claim, compensation, benefit, or money referred to in KRS 342.335(1) or (2) is less than or equal to three hundred dollars ($300) shall be fined per occurrence not more than one thousand dollars ($1,000) per individual nor five thousand dollars ($5,000) per corporation, or twice the amount of gain received as a result of the violation, whichever is greater;
    7. Any person who violates any of the provisions of KRS 342.335(1) or (2) where the claim, compensation, benefit, or money referred to in KRS 342.335(1) or (2) exceeds three hundred dollars ($300) shall be fined per occurrence not more than five thousand dollars ($5,000) per individual nor ten thousand dollars ($10,000) per corporation, or twice the amount of gain received as a result of the violation, whichever is greater;
    8. Any person who violates the employee leasing provision of this chapter shall be fined not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000) for each violation;
    9. Any violation of the provisions of this chapter relating to self-insureds shall constitute grounds for decertification of such self-insured, a fine of not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000) per occurrence, or both; and
    10. Actions to collect the civil penalties imposed under this subsection shall be instituted in the Franklin District Court and the Franklin Circuit Court.
  8. The commissioner shall initiate enforcement of a criminal penalty by causing a complaint to be filed with the appropriate local prosecutor. If the prosecutor fails to act on the violation within twenty (20) days following the filing of the complaint, the commissioner shall certify the inaction by the local prosecutor to the Attorney General who shall initiate proceedings to prosecute the violation. The provisions of KRS 15.715 shall not apply to this section.
  9. The following criminal penalties shall be applicable for violations of particular provisions of this chapter:
    1. Any person who violates KRS 342.020(12), 342.035(2), 342.040 , 342.400 , 342.420 , or 342.630 , shall, for each offense, be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), or imprisoned for not less than thirty (30) days nor more than one hundred eighty (180) days, or both;
    2. Any person who violates any of the provisions of KRS 342.165(2), 342.335 , 342.460 , 342.465 , or 342.470 shall, for each offense, be fined not less than two hundred dollars ($200) nor more than two thousand dollars ($2,000), or imprisoned for not less than thirty (30) days nor more than one hundred and eighty (180) days, or both;
    3. Any corporation, partnership, sole proprietorship, or other form of business entity and any officer, general partner, agent, or representative of the foregoing who knowingly utilizes or participates in any employee leasing arrangement or mechanism as defined in KRS 342.615 for the purpose of depriving one (1) or more insurers of premium otherwise properly payable or for the purpose of depriving the Commonwealth of any tax or assessment due and owing and based upon said premium shall upon conviction thereof be subject to a fine of not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000), or imprisonment for not more than one hundred eighty (180) days, or both, for each offense; and
    4. Notwithstanding any other provisions of this chapter to the contrary, when any employer, insurance carrier, or individual self-insured fails to comply with this chapter for which a penalty is provided in subparagraphs (7), (8), and (9) above, such person, if the person is an owner in the case of a sole proprietorship, a partner in the case of a partnership, a principal in the case of a limited liability company, or a corporate officer in the case of a corporation, who knowingly authorized, ordered, or carried out the violation, failure, or refusal shall be personally and individually liable, both jointly and severally, for the penalties imposed in the above cited subparagraphs. Neither the dissolution nor withdrawal of the corporation, partnership, or other entity from the state, nor the cessation of holding status as a proprietor, partner, principal, or officer shall discharge the foregoing liability of any person.
  10. Fines paid pursuant to KRS 342.267 and subsections (7) and (9) of this section shall be paid into the self-insurance fund established in KRS 342.920 .
  11. In addition to the penalties provided in this section, the commissioner and any administrative law judge or court of jurisdiction may order restitution of a benefit secured through conduct proscribed by this chapter.

HISTORY: 4944, 4945, 4958, 4962, 4968-5: amend. Acts 1946, ch. 61, § 4; 1960, ch. 147, § 18; 1966, ch. 255, § 283; 1972, ch. 78, § 31; 1980, ch. 188, § 276, effective July 15, 1980; 1984, ch. 96, § 2, effective July 13, 1984; 1987 (Ex. Sess.), ch. 1, § 71, effective October 26, 1987; 1994, ch. 181, Part 13, § 64, effective April 4, 1994; 1996, ch. 318, § 315, effective July 15, 1996; 1996, ch. 355, § 16, effective July 15, 1996; 1996 (1st Ex. Sess.), ch. 1, § 48, effective December 12, 1996; 2000, ch. 514, § 36, effective July 14, 2000; 2006, ch. 245, § 2, effective July 12, 2006; 2010, ch. 24, § 1862, effective July 15, 2010; 2018 ch. 40, § 18, effective July 14, 2018.

Legislative Research Commission Note.

(12/12/96). The reference to “subparagraphs (7), (8), and (9) above” in subsection (9)(d) of this statute is how this text read in 1996 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 48. The normal hierarchy of subdivision in a section of the Kentucky Revised Statutes is, in descending order, subsections (indicated by Hindu-Arabic numerals in parentheses), paragraphs (indicated by lowercase letters in parentheses), subparagraphs (indicated by Hindu-Arabic numerals followed by a period), and subdivisions of subparagraphs (indicated by lowercase letters followed by a period). This statute contains no subparagraphs 7., 8., and 9., but the type of numbering used suggests that “subsections” may have been meant in this phrase instead of “subparagraphs.”

(7/15/96). This section was amended by 1996 Ky. Acts chs. 318 and 355. Where these Acts are not in conflict they have been codified together. Where a conflict exists, Acts ch. 355, which was last enacted by the General Assembly prevails under KRS 446.250 .

NOTES TO DECISIONS

  1. Constitutionality.
  2. Application.
1. Constitutionality.

Former subsection (7) of this section conflicted with Kentucky Constitution, section 111(2). The review of these decisions must be initiated by an original action in a Circuit Court. Orange Ventures v. Workers' Compensation Bd., 923 S.W.2d 909, 1996 Ky. App. LEXIS 80 (Ky. Ct. App. 1996).

2. Application.

KRS 342.197 does not preempt an employee’s right to bring a wrongful discharge action against her employer since this section does not provide a civil remedy. Pike v. Harold (Chubby) Baird Gate Co., 705 S.W.2d 947, 1986 Ky. App. LEXIS 1050 (Ky. Ct. App. 1986).

Although KRS 342.990 provided civil and criminal penalties for an employer’s failure to comply with KRS 342.040(1) regarding the payment of workers’ compensation benefits, KRS chapter 342 provided no remedy for affected workers like the employee, who was not notified that the employee was required to apply for temporary total disability benefits within two years after the payment of such benefits ended or be barred from receiving them. Thus, the employer was estopped from asserting a statute of limitations defense where the employer’s failure to promptly and properly inform the Office of Workers’ Claims (now Department of Workers’ Claims) that the employer had terminated the employee’s temporary total disability benefits meant that the Office did not notify the employee that the employee only had two (2) years from the date of termination to file an application for such benefits. Ky. Container Serv. v. Ashbrook, 265 S.W.3d 793, 2008 Ky. LEXIS 185 ( Ky. 2008 ).

Although KRS 342.990 provided civil and criminal penalties for an employer’s failure to comply strictly with KRS 342.040(1), KRS ch. 342 provided no remedy for a workers’ compensation claimant who, unaware of the applicable limitations period, failed to file a timely claim. Hitachi Auto. Prods. USA, Inc. v. Craig, 279 S.W.3d 123, 2008 Ky. LEXIS 238 ( Ky. 2008 ).

Cited:

May v. James H. Drew Shows, Inc., 576 S.W.2d 524, 1978 Ky. App. LEXIS 662 (Ky. Ct. App. 1978); Lanier v. Commonwealth, Fish & Wildlife Div., 605 S.W.2d 18, 1979 Ky. App. LEXIS 539 (Ky. Ct. App. 1979); Zurich Ins. Co. v. Mitchell, 712 S.W.2d 340, 1986 Ky. LEXIS 275 ( Ky. 1986 ); Newberg v. Hudson, 838 S.W.2d 384, 1992 Ky. LEXIS 129 ( Ky. 1992 ); Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 2003 Ky. LEXIS 86 ( Ky. 2003 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Schilling, Workers’ Compensation . . . . . Now and Anon!, Volume 52, No. 4, Fall 1988 Ky. Bench & B. 76.

Northern Kentucky Law Review.

Jones, House Bill 928: Solution or Band-Aid for Kentucky Workers’ Compensation?, 22 N. Ky. L. Rev. 357 (1995).

Jackson and Crase, A Surveyof Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

CHAPTER 343 Apprenticeship

343.010. Definitions for chapter.

As used in this chapter unless the context requires otherwise:

  1. “Apprentice” means a worker at least sixteen (16) years of age, except where a higher minimum age standard is otherwise fixed by law, who is employed to learn an apprenticeable occupation as provided in 29 C.F.R. pt. 29;
  2. “Apprenticeship agreement” means a written agreement, complying with 29 C.F.R. pt. 29 between an apprentice and either the apprentice’s program sponsor, or an apprenticeship committee acting as agent for the program sponsors, which contains the terms and conditions of the employment and training of the apprentice;
  3. “Commissioner” means commissioner of the Department of Workforce Investment, under the direction and supervision of the secretary of the Education and Workforce Development Cabinet, or any person authorized to act in his or her behalf;
  4. “Council” means the Kentucky Apprenticeship Council, which provides advice and guidance to the Kentucky Education and Workforce Development Cabinet regarding the Commonwealth’s apprenticeship program;
  5. “Supervisor” means supervisor of apprenticeship;
  6. “Trainee” means a person at least sixteen (16) years of age who has entered into an on-the-job training agreement with an employer or an association of employers or an organization of employees in a construction occupation under a program which has been approved by a federal agency as promoting equal employment opportunity in conjunction with federal-aid construction projects;
  7. “Apprenticeship program” means a plan containing all terms and conditions for the qualification, recruitment, selection, employment, and training of apprentices as required under 29 C.F.R. pts. 29 and 30, including such matters as the requirement for a written apprenticeship agreement;
  8. “On-the-job training program” means a plan containing all terms and conditions for the qualification, recruitment, selection, employment, and training of a trainee, including such matters as the requirement for a written on-the-job training agreement other than an apprenticeship program; provided, however, that said program has been approved by a federal agency as promoting equal employment opportunity in conjunction with federal-aid construction projects;
  9. “Sponsor” means any person, association, committee, or organization in whose name or title the program is or is to be registered, irrespective of whether such entity is an employer;
  10. “Employer” means any person or organization employing an apprentice or trainee whether or not such person or organization is a party to an apprenticeship or on-the-job training agreement with the apprentice or trainee; and
  11. “Related instruction” means an organized and systematic form of instruction designed to provide the apprentice or trainee with knowledge of the theoretical and technical subjects related to the apprentice’s occupation.

History. 1599c-34: amend. Acts 1974, ch. 91, § 1; 1984, ch. 414, § 40, effective July 13, 1984; 2010, ch. 24, § 1863, effective July 15, 2010; 2014, ch. 8, § 1, effective July 15, 2014; 2019 ch. 173, § 6, effective June 27, 2019.

343.020. Kentucky Apprenticeship Council.

  1. The Kentucky Apprenticeship Council is hereby created and established as an administrative body charged with providing advice to the commissioner on matters affecting apprenticeship policy.
    1. The Kentucky Apprenticeship Council shall consist of six (6) members appointed by the Governor as follows: two (2) members who shall represent employees or apprentices, two (2) members who shall represent employers or apprenticeship program sponsors, and two (2) at-large members. These six (6) members shall serve for a term of four (4) years and until their successors are appointed and qualified. The commissioner of the Department for Workforce Investment shall serve as the seventh member and be chair of the council. (2) (a) The Kentucky Apprenticeship Council shall consist of six (6) members appointed by the Governor as follows: two (2) members who shall represent employees or apprentices, two (2) members who shall represent employers or apprenticeship program sponsors, and two (2) at-large members. These six (6) members shall serve for a term of four (4) years and until their successors are appointed and qualified. The commissioner of the Department for Workforce Investment shall serve as the seventh member and be chair of the council.
    2. The council shall meet at the call of the commissioner.   A majority of the members of the council, except for the commissioner of the Department of Workforce Investment, shall constitute a quorum for the transaction of business.
    3. Any member appointed to fill a vacancy occurring for any reason other than by expiration of a term shall be appointed for the remainder of the unexpired term. Any member whose term has expired, however, shall serve until his or her successor is appointed and qualified.
    4. Members shall be reimbursed for necessary expenses incurred in fulfillment of their duties on the council in the manner and amounts prescribed for state employees by KRS 45.101 and the administrative regulations promulgated under the authority of that statute. No member of the council, however, shall be paid for his or her attendance at any meeting.
  2. The council shall be attached to the Department of Workforce Investment within the Education and Workforce Development Cabinet for administrative purposes.

HISTORY: 1599c-31: amend. Acts 1974, ch. 91, § 2; 1984, ch. 414, § 40, effective July 13, 1984; 1990, ch. 470, § 62, effective July 1, 1990; 1997 (1st Ex. Sess.), ch. 1, § 147, effective May 30, 1997; 2009, ch. 35, § 1, effective June 25, 2009; 2010, ch. 24, § 1864, effective July 15, 2010; 2014, ch. 8, § 2, effective July 15, 2014; 2017 ch. 177, § 3, effective June 29, 2017; 2019 ch. 173, § 7, effective June 27, 2019.

343.030. Supervisor of apprenticeship — Clerical, technical, and professional help.

The commissioner, with the approval of the Governor, may appoint a supervisor of apprenticeship. He or she may also appoint such clerical, technical, and professional help as shall be necessary to effectuate the purposes of this chapter.

History. 1599c-32: amend. Acts 1974, ch. 91, § 3; 2010, ch. 24, § 1865, effective July 15, 2010; 2019 ch. 173, § 8, effective June 27, 2019.

Research References and Practice Aids

Cross-References.

Heads of departments may appoint staffs, KRS 12.050 , 12.060 .

343.040. Supervisor’s powers and duties.

The supervisor, under the direction of the commissioner, may:

  1. Administer this chapter;
  2. Set up conditions and training standards for apprenticeship or on-the-job training programs and agreements;
  3. Act as secretary to the council;
  4. Approve, if in his or her opinion approval is to the best interest of both parties, any apprenticeship or on-the-job training program and agreement submitted to him or her by the parties thereto, that meets the standards established under this chapter;
  5. Keep a record of apprenticeship and on-the-job training programs and agreements and their disposition;
  6. Issue certificates of completion of apprenticeship and on-the-job training; and
  7. Perform such other duties as are necessary to carry out the intention of this chapter.

History. 1599c-33: amend. Acts 1974, ch. 91, § 4; 2010, ch. 24, § 1866, effective July 15, 2010; 2014, ch. 8, § 3, effective July 15, 2014; 2019 ch. 173, § 9, effective June 27, 2019.

Research References and Practice Aids

Cross-References.

Administrative regulations adoption and effective dates, KRS 13A.330 .

343.050. Apprenticeship or on-the-job training agreement — Contents.

Every apprenticeship or on-the-job training agreement approved under this chapter shall contain:

  1. The names and signatures of the contracting parties and the signature of a parent or guardian if the apprentice is a minor;
  2. The date of birth of the apprentice or trainee;
  3. A statement of the occupation or business which the apprentice or trainee is to be taught and the time at which the apprenticeship or on-the-job training will begin and end;
  4. A statement showing:
      1. The number of hours to be spent by the apprentice or trainee in work on the job in a time-based program; or (a) 1. The number of hours to be spent by the apprentice or trainee in work on the job in a time-based program; or
      2. A description of the skill sets to be attained by completion of a competency-based program, including the on-the-job training component; or
      3. The minimum number of hours to be spent by the apprentice and a description of the skill sets to be attained by completion of a hybrid program; and
    1. The number of hours to be spent in related instruction in technical subjects related to the occupation, which shall be not less than one hundred forty-four (144) hours per year;
  5. A statement setting forth a schedule of the processes in the occupation or industry divisions in which the apprentice or trainee is to be taught and the approximate time to be spent at each process;
  6. A statement of the graduating scale of compensation to be paid the apprentice or trainee, and whether the required school time shall be compensated;
  7. A statement providing for a period of probation not to exceed twenty-five percent (25%) of the length of the program or one (1) year, whichever is shorter, during which the apprenticeship or on-the-job training agreement may be canceled by either party to the agreement upon written notice to the registration agency, without adverse impact on the sponsor; and
  8. A provision that all controversies or differences concerning the apprenticeship or on-the-job training agreement which cannot be adjusted by the parties shall be submitted to the supervisor for determination as provided in KRS 343.070 .

History. 1599c-35: amend. Acts 1974, ch. 91, § 5; 2014, ch. 8, § 4, effective July 15, 2014.

NOTES TO DECISIONS

  1. Wrongful Relationship.
  2. Contract for Infant.
1. Wrongful Relationship.

Only consequence of abortive effort to enter into master and apprentice relationship, provided the relationship was wrongfully entered into, would be the loss to each party of statutory remedies to enforce relationship and not the right to recover damages because of noncompliance with law. Brooks v. Madden, 198 Ky. 167 , 248 S.W. 503, 1923 Ky. LEXIS 404 ( Ky. 1923 ) (decided under prior law).

2. Contract for Infant.

Contract purporting to be agreement of infant, acting through his father, to serve as jockey for horse owner for stated monthly wages was not indenture of apprenticeship under laws of state where made, where horse owner was not obliged to teach infant or develop him as jockey; it was mere contract for service of infant for compensation payable to father. Cain v. Garner, 169 Ky. 633 , 185 S.W. 122, 1916 Ky. LEXIS 769 ( Ky. 1916 ) ( Ky. 1916 ) (decided under prior law).

343.060. Approval of agreements — Signatures.

No apprentice or trainee agreements submitted for approval under this chapter shall be effective until written approval of the agreement is provided by the supervisor. Every apprenticeship or on-the-job training agreement, so submitted, shall be signed by the contracting parties and the parent or guardian if the apprentice or trainee is a minor. Where a minor enters into an apprenticeship or on-the-job training agreement under this chapter for a period of training extending into his majority, the apprenticeship or on-the-job training agreement shall likewise be binding for the period covered during his majority.

History. 1599c-36: amend. Acts 1974, ch. 91, § 6; 2014, ch. 8, § 5, effective July 15, 2014.

343.070. Settlements of controversies or complaints.

  1. Upon the complaint of either party to the agreement, or upon his or her own initiative, the supervisor may investigate or determine if there has been a violation of the terms of the apprenticeship or on-the-job training agreement approved under this chapter. He may conduct inquiries and other proceedings necessary to any investigation and determination. The parties to the agreement shall, after reasonable notice, be given an informal hearing before the supervisor.
  2. The determination of the supervisor shall be filed with the commissioner. If no appeal therefrom is filed with the commissioner within fifteen (15) days, the determination shall become final. Any party aggrieved by any determination or action of the supervisor may appeal to the commissioner, who shall hold an administrative hearing in accordance with KRS Chapter 13B.
  3. Any party to an apprenticeship or on-the-job training agreement aggrieved by a final order of the commissioner may appeal to the Franklin Circuit Court.

History. 1599c-37: amend. Acts 1974, ch. 91, § 7; 1996, ch. 318, § 316, effective July 15, 1996; 2010, ch. 24, § 1867, effective July 15, 2010; 2014, ch. 8, § 6, effective July 15, 2014.

Research References and Practice Aids

Cross-References.

Appeals to Court of Appeals, CR 73.01 to 73.08.

343.080. Applicability of terms or provisions of chapter.

  1. Nothing in this chapter or in any apprenticeship or on-the-job training agreement approved under this chapter shall operate to invalidate:
    1. Any apprenticeship or on-the-job training provision in any collective agreement between employers and employees setting up higher standards; or
    2. Any special provision for veterans, minority persons, or women in the standards, apprentice qualifications, or operation of the program, or in the apprenticeship agreement, which is not otherwise prohibited by law, executive order, or administrative regulation.
  2. None of the terms or provisions of this chapter shall apply to any person, firm, corporation, or occupation, unless such person, firm, corporation, or occupation voluntarily elects that the terms and provisions of this chapter shall apply.

History. 1599c-38: amend. Acts 1974, ch. 91, § 8; 2014, ch. 8, § 7, effective July 15, 2014.

343.090. Public policy as to apprenticeship and on-the-job training.

  1. It is the public policy of this state to foster, encourage, and develop interest and training in manual and industrial arts, and to encourage the entrance into voluntary agreements of apprenticeship and on-the-job training which will equip workers for profitable employment.
  2. Any contracts or practices which tend to stifle the opportunity as set forth in subsection (1) of this section are contrary to the public policy of this state.

History. 1599c-30: amend. Acts 1974, ch. 91, § 9; 2014, ch. 8, § 8, effective July 15, 2014.

CHAPTER 344 Civil Rights

344.010. Definitions for chapter.

In this chapter:

  1. “Person” includes one (1) or more individuals, labor organizations, joint apprenticeship committees, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, fiduciaries, receivers, or other legal or commercial entity; the state, any of its political or civil subdivisions or agencies.
  2. “Commission” means the Kentucky Commission on Human Rights.
  3. “Commissioner” means a member of the commission.
  4. “Disability” means, with respect to an individual:
    1. A physical or mental impairment that substantially limits one (1) or more of the major life activities of the individual;
    2. A record of such an impairment; or
    3. Being regarded as having such an impairment.
  5. “Discrimination” means any direct or indirect act or practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, or any other act or practice of differentiation or preference in the treatment of a person or persons, or the aiding, abetting, inciting, coercing, or compelling thereof made unlawful under this chapter.
  6. “Real property” includes buildings, structures, real estate, lands, tenements, leaseholds, cooperatives, condominiums, and hereditaments, corporeal and incorporeal, or any interest in the above.
  7. “Housing accommodations” includes improved and unimproved property and means any building, structure, lot or portion thereof, which is used or occupied, or is intended, arranged, or designed to be used or occupied as the home or residence of one (1) or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building or structure.
  8. “Real estate operator” means any individual or combination of individuals, labor organizations, joint apprenticeship committees, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees in bankruptcy, receivers, or other legal or commercial entity, the county, or any of its agencies, that is engaged in the business of selling, purchasing, exchanging, renting, or leasing real estate, or the improvements thereon, including options, or that derives income, in whole or in part, from the sale, purchase, exchange, rental, or lease of real estate; or an individual employed by or acting on behalf of any of these.
  9. “Real estate broker” or “real estate salesman” means any individual, whether licensed or not, who, on behalf of others, for a fee, commission, salary, or other valuable consideration, or who with the intention or expectation of receiving or collecting the same, lists, sells, purchases, exchanges, rents, or leases real estate, or the improvements thereon, including options, or who negotiates or attempts to negotiate on behalf of others such an activity; or who advertises or holds himself out as engaged in these activities; or who negotiates or attempts to negotiate on behalf of others a loan secured by mortgage or other encumbrance upon a transfer of real estate, or who is engaged in the business of charging an advance fee or contracting for collection of a fee in connection with a contract whereby he undertakes to promote the sale, purchase, exchange, rental, or lease of real estate through its listing in a publication issued primarily for this purpose; or any person employed by or acting on behalf of any of these.
  10. “Financial institution” means bank, banking organization, mortgage company, insurance company, or other lender to whom application is made for financial assistance for the purchase, lease, acquisition, construction, rehabilitation, repair, maintenance, or improvement of real property, or an individual employed by or acting on behalf of any of these.
  11. “Licensing agency” means any public or private organization which has as one (1) of its duties the issuing of licenses or the setting of standards which an individual must hold or must meet as a condition to practicing a particular trade or profession or to obtaining certain employment within the state or as a condition to competing effectively with an individual who does hold a license or meet the standards.
  12. “Credit transaction” shall mean any open or closed end credit transaction whether in the nature of a loan, retail installment transaction, credit card issue or charge, or otherwise, and whether for personal or for business purposes, in which a service, finance, or interest charge is imposed, or which provides for repayment in scheduled payments, when such credit is extended in the course of the regular course of any trade or commerce, including but not limited to transactions by banks, savings and loan associations, or other financial lending institutions of whatever nature, stock brokers, or by a merchant or mercantile establishment which as part of its ordinary business permits or provides that payment for purchases of property or services therefrom may be deferred.
  13. “To rent” means to lease, to sublease, to let, or otherwise to grant for a consideration the right to occupy premises not owned by the occupant.
  14. “Family” includes a single individual.
    1. “Familial status” means one (1) or more individuals who have not attained the age of eighteen (18) years and are domiciled with: (15) (a) “Familial status” means one (1) or more individuals who have not attained the age of eighteen (18) years and are domiciled with:
      1. A parent or another person having legal custody of the individual or individuals; or
      2. The designee of a parent or other person having custody, with the written permission of the parent or other person.
    2. The protection afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of eighteen (18) years.
  15. “Discriminatory housing practice” means an act that is unlawful under KRS 344.360 , 344.367 , 344.370 , 344.380 , or 344.680 .

Persons with current or past controlled substances abuse or alcohol abuse problems and persons excluded from coverage by the Americans with Disabilities Act of 1990 (P.L. 101-336) shall be excluded from this section.

History. Enact. Acts 1966, ch. 2, Art. 2, § 201; 1968, ch. 167, § 1; 1972, ch. 255, § 1; 1974, ch. 104, § 1; 1980, ch. 245, § 1, effective July 15, 1980; 1992, ch. 282, § 1, effective July 14, 1992.

Compiler’s Notes.

The Americans With Disabilities Act of 1990 (P.L. 101-336), referred to in subsection (4), may be found as 42 USCS § 12101 et seq.

NOTES TO DECISIONS

Analysis

  1. Application of Federal Law.
  2. Federal Action.
  3. Right to Adjudicate Complaints.
  4. Racial Discrimination.
  5. Age Discrimination.
  6. Sex Discrimination.
  7. Disability.
  8. Real Estate Operator.
  9. Appointment of Employees.
  10. County as Employer.
  11. Quotas.
  12. Prima Facie Case.
  13. Liability.
  14. Jury Trial.
  15. Damages.
  16. Preemption.
  17. Statute of limitations.
1. Application of Federal Law.

Because this Kentucky discrimination statute is modeled after, and is virtually identical to, Title VII, 42 USCS § 2000e, et seq., Kentucky courts have followed federal law in interpreting its anti-discrimination statute. Mills v. Gibson Greetings, 872 F. Supp. 366, 1994 U.S. Dist. LEXIS 19291 (E.D. Ky. 1994 ).

The definition of “employee” differs from its federal counterpart in that it does not contain the language removing the personal staff of elected officials from status as an “employee”. Lococo v. Barger, 958 F. Supp. 290, 1997 U.S. Dist. LEXIS 4262 (E.D. Ky. 1997 ), aff'd in part and rev'd in part, 234 F.3d 1268, 2000 U.S. App. LEXIS 35187 (6th Cir. Ky. 2000 ).

The general purpose of the Kentucky Civil Rights Act is to provide a means for implementing within the state the policies embodied in the Federal Civil Rights Act of 1964, as amended, as well as other related federal statutes; it is therefore common practice to look to the federal counterpart in construing this chapter. Lococo v. Barger, 958 F. Supp. 290, 1997 U.S. Dist. LEXIS 4262 (E.D. Ky. 1997 ), aff'd in part and rev'd in part, 234 F.3d 1268, 2000 U.S. App. LEXIS 35187 (6th Cir. Ky. 2000 ).

2. Federal Action.

The dismissal of a charge of discrimination by the EEOC is an action by a federal agency taken pursuant to federal statute and thus outside the bounds of KRS Chapter 344 as it is presently drafted. Canamore v. Tube Turns Div. of Chemetron Corp., 676 S.W.2d 800, 1984 Ky. App. LEXIS 581 (Ky. Ct. App. 1984).

Former employee’s civil rights action against her former employer and supervisor was summarily dismissed because, where two (2) years of litigation had occurred based on the belief that the case was grounded in Title VII based only on alleged retaliation, 42 USCS § 2000e-3(a), she could not assert new theories under the Kentucky Civil Rights Act, KRS 344.010 , and state common law in her response as doing so subjected defendants to unfair surprise. Rhea v. Fifth St. Hi-Rise, Inc., 2006 U.S. Dist. LEXIS 64419 (W.D. Ky. Sept. 8, 2006).

3. Right to Adjudicate Complaints.

KRS Chapter 344 grants the state Commission on Human Rights the preemptive right to adjudicate complaints of discrimination. Kentucky Com. on Human Rights v. Lesco Mfg. & Design Co., 736 S.W.2d 361, 1987 Ky. App. LEXIS 559 (Ky. Ct. App. 1987).

This chapter authorizes alternative avenues of relief, one administrative and one judicial, and an individual choosing the administrative avenue may bring a complaint of discrimination before either the Kentucky Commission or the local commission; once an avenue of relief is chosen, the complainant must follow that avenue through its final conclusion. Vaezkoroni v. Domino's Pizza, 914 S.W.2d 341, 1995 Ky. LEXIS 132 ( Ky. 1995 ).

4. Racial Discrimination.

Racial discrimination may be shown by proof of either discriminatory purpose or discriminatory effect; actual intent or malevolent motive need not be proven. Middlesboro Housing Authority v. Kentucky Com. on Human Rights, 553 S.W.2d 57, 1977 Ky. App. LEXIS 737 (Ky. Ct. App. 1977).

Evidence of other discriminatory acts by a company was admissible to show a prima facie case or pretext of racial discrimination under the theory of disparate impact. White v. Rainbo Baking Co., 765 S.W.2d 26, 1988 Ky. App. LEXIS 181 (Ky. Ct. App. 1988).

Employees’ hostile work environment and racial discrimination claims failed on summary judgment as sporadic harassment evincing an offensive environment was not so hostile so as to impose liability on the employer under Kentucky’s Civil Rights Act, KRS 344.010 et seq., which used the same standards for imposing liability as Title VII of the Civil Rights Act of 1964, 42 USCS § 2000e et seq. Wilson v. Dana Corp., 210 F. Supp. 2d 867, 2002 U.S. Dist. LEXIS 12298 (W.D. Ky. 2002 ).

Where appellant was employed as an assistant director at a university until the job qualifications were changed to require a doctorate degree, she was unable to meet the burden of establishing a prima facie case of race discrimination under the Kentucky Civil Rights Act, KRS ch. 344. Appellant was objectively unqualified for the position, because she did not possess a doctorate degree. Woods v. W. Ky. Univ., 303 S.W.3d 484, 2009 Ky. App. LEXIS 165 (Ky. Ct. App. 2009).

5. Age Discrimination.

The “tier-down” provisions of KRS 342.730(4) do not conflict with the age discrimination provisions of KRS Chapter 344; that chapter does not pertain to enactments of the legislature, and moreover, there is no evidence that claimant did not receive the full benefit of the Workers’ Compensation Act due to his age. Wynn v. Ibold, Inc., 969 S.W.2d 695, 1998 Ky. LEXIS 92 ( Ky. 1998 ).

Former employee had not established a prima facie case of age discrimination under the Age Discrimination in Employment Act, 29 USCS § 623, or the Kentucky Civil Rights Act, KRS 344.010 et seq., because the employee could not establish any adverse action that the employer took against him. Placing the employee on a target renewal plan, and later on probation, and escorting the employee from the premises when he behaved inappropriately were not adverse actions and the employee additionally continued to receive salary and benefits through the employer’s disability and retirement programs. Fricke v. E.I. Dupont Co., 2005 U.S. Dist. LEXIS 16794 (W.D. Ky. Aug. 11, 2005), aff'd, 219 Fed. Appx. 384, 2007 FED App. 0079N, 2007 U.S. App. LEXIS 2425 (6th Cir. Ky. 2007 ).

Employer was entitled to summary judgment in a former employee’s action alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 USCS § 621 et seq., and the Kentucky Civil Rights Act, KRS 344.010 et seq.; the employee failed to establish a prima facie case of age discrimination under either statute because he was replaced by an individual over the age of 40. Hackworth v. Guyan Heavy Equip., Inc., 613 F. Supp. 2d 908, 2009 U.S. Dist. LEXIS 39852 (E.D. Ky. 2009 ).

In the employee’s age discrimination action, the trial court erred by instructing the jury to decide whether the employer replaced the employee with a substantially younger person based on circumstantial evidence rather than making that determination itself. The error was not harmless because the employee was justified in assuming that the 12-year age difference between herself and the worker that replaced her was more than enough to satisfy the requirement and the jury could have found in favor of the employer because they did not find that the employee was replaced by a substantially younger person. Norton Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696, 2020 Ky. LEXIS 180 ( Ky. 2020 ).

6. Sex Discrimination.

The plaintiff failed to establish actionable sex discrimination where she showed that she was a member of a protected class, in that she was discriminated against due to pregnancy, childbirth, and parenthood with regard to her treatment on the job, but failed to prove that her employer’s failure to reclassify her as a faculty member, rather than a mid-management employee, was possible. Tiller v. University of Kentucky, 55 S.W.3d 846, 2001 Ky. App. LEXIS 15 (Ky. Ct. App. 2001).

Employer was entitled to summary judgment on the employees’ hostile work environment claims under the Kentucky Civil Rights Act, KRS 344.010 et seq., because although the employees were members of a protected class, and were subjected to unwelcome harassment that was based on sex, the employees’ allegations did not describe conduct that was sufficiently severe or pervasive to create an abusive working environment, the employer took steps both to prevent sexual harassment generally and to correct the manager’s harassing behavior specifically towards the employees, the employees failed to take advantage of the employer’s sexual harassment notification procedures, and the knowledge of or notice to low level management personnel without authority or power to terminate or address the problem cannot be imputed to the employer. Clark v. UPS, 286 F. Supp. 2d 819, 2003 U.S. Dist. LEXIS 17489 (W.D. Ky. 2003 ), aff'd in part and rev'd in part, 400 F.3d 341, 2005 FED App. 0116P, 2005 U.S. App. LEXIS 3916 (6th Cir. Ky. 2005 ).

Former employee failed to state a claim for hostile work environment under the Kentucky Civil Rights Act, KRS 344.010 et seq., because although she showed evidence inferring discourteous and mean-spirited treatment, the evidence failed to suggest an anti-female basis. The employee did not show one sexual remark and showed no physical harassment; just because the harassment was from a man directed toward a women did not prove that the harassment was from an anti-female bias. Wiseman v. Whayne Supply Co., 2004 U.S. Dist. LEXIS 27268 (W.D. Ky. Jan. 5, 2004).

Employee stated a prima facie claim of sexual harassment to withstand summary judgment under the Kentucky Civil Rights Act (KCRA), KRS 344.010 et seq., where she related 17 incidents of sexual harassment by a supervisor demonstrating more of an ongoing pattern of unwanted conduct for a hostile work environment claim. Although the employer had a reasonable harassment policy, there was a disputed material issue of fact as to whether the employer exercised reasonable care in preventing and correcting harassment, so that the affirmative defense against strict liability for supervisor harassment was not available to the employer at the summary judgment state for the employee’s KCRA claim. Clark v. UPS, 400 F.3d 341, 2005 FED App. 0116P, 2005 U.S. App. LEXIS 3916 (6th Cir. Ky. 2005 ).

Preponderance of the evidence did not support the assertion that there was no factual basis to support an employer’s determination that an employee’s performance was inadequate. That the employee had adduced some evidence that she was a good employee was insufficient to meet the preponderance of the evidence standard; those facts could not overcome the repeated, and significant, failures on her part to meet her sales quotas. Tudor v. BellSouth Telcoms., Inc., 2006 U.S. Dist. LEXIS 3722 (W.D. Ky. Jan. 30, 2006).

Employee failed to establish a prima facie showing of sexual discrimination based on a hostile work environment in violation of the Kentucky Civil Rights Act, KRS 344.010 et seq. The employee’s testimony revealed that the employer quickly responded to the employee’s complaints regarding name-calling and comments regarding the employee’s sexual practices. Fields v. Papa John's Int'l, Inc., 2007 Ky. App. LEXIS 195 (Ky. Ct. App.), sub. op., 2007 Ky. App. Unpub. LEXIS 1224 (Ky. Ct. App. June 29, 2007).

Even though a trial court erred by giving a punitive damages instruction in a civil rights action alleging retaliatory discharge, the error was harmless because all of the retaliatory termination civil rights claim and the common law wrongful discharge claim were factually synonymous; therefore, all of the actions covered by the punitive damage instruction were properly subject to punitive damages. Hill v. Ky. Lottery Corp., 327 S.W.3d 412, 2010 Ky. LEXIS 317 ( Ky. 2010 ).

7. Disability.

Even assuming anesthesiologist had sleep apnea and sleep apnea is a “disability” under the Kentucky Civil Rights laws, where the anesthesiologist’s firing was based on actual, documented reports from several occasions where he was asleep during surgery, in no way could hospital’s decision be characterized as based on an alleged disability and unlawful. Brohm v. JH Props., 947 F. Supp. 299, 1996 U.S. Dist. LEXIS 19810 (W.D. Ky. 1996 ), aff'd, 149 F.3d 517, 1998 FED App. 0224P, 1998 U.S. App. LEXIS 16924 (6th Cir. Ky. 1998 ).

The plaintiff failed to establish that he was disabled where the evidence showed that he had restrictions, but there was no evidence that they were “significant” restrictions on his ability to work as compared to the average person in the general population having comparable training, skills, and abilities. Law v. City of Scottsville, 2000 U.S. App. LEXIS 14512 (6th Cir. Ky. June 15, 2000).

Employee did not meet the requirements associated with his work, but he was not substantially limited in his major life activities as the employee could perform most of the tasks necessary to the job except for frequent lifting of forty or more pounds over his head. An impairment that interfered with work-related tasks did not necessarily rise to the level of a disability under KRS 344.010(4), and a restriction on lifting heavy objects did not necessarily interfere with the central functions of daily life, and there was no evidence that the employer regarded the lifting restriction as having substantially limited the employee in major life activities. Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 2003 Ky. LEXIS 258 ( Ky. 2003 ).

Law school did not violate the Kentucky Civil Rights Act, KRS 344.010 et seq. when it rejected the admissions application filed by a former first year law student who, battling depression, had withdrawn the previous year intending to re-enter the following year. The student failed to show that he was an otherwise qualified handicapped individual despite his disability; the school was concerned for the safety of its other students and with whether the student could meet its academic requirements. Hash v. Univ. of Ky., 138 S.W.3d 123, 2004 Ky. App. LEXIS 170 (Ky. Ct. App. 2004).

Twenty-pound lifting restriction did not qualify as substantially limiting the major activities of lifting or working for purposes of the “regarded as” prong for disability discrimination liability under the Kentucky Civil Rights Act, KRS 344.010 et seq. Hallahan v. Courier-Journal, 138 S.W.3d 699, 2004 Ky. App. LEXIS 186 (Ky. Ct. App. 2004).

Employee had a disability-retaliation claim under the Kentucky Civil Rights Act where she was terminated just two (2) days after leaving a voice message with the supervisor asking if she could perform seated work, and one day after conveying the same request to a senior manager. Bryson v. Regis Corp., 498 F.3d 561, 2007 FED App. 0328P, 2007 U.S. App. LEXIS 19481 (6th Cir. Ky. 2007 ).

Employer was entitled to summary judgment in an employee’s action under the Americans with Disabilities Act, 42 USCS § 12101 et seq., and under KRS 344.010 et seq., in which the employee claimed that the employer failed to provide reasonable accommodation in the form of reconsideration of a positive drug test; the employer had no obligation under 42 USCS § 12112(b) to engage in the interactive process because the drug test result was not a barrier to job performance caused by the employee’s sleep epilepsy, and the employee did not show that her sleep epilepsy qualified as a disability under 42 USCS § 12102 because there was no evidence that it substantially limited her sleep. Ozee v. Henderson County, 2009 U.S. Dist. LEXIS 37114 (W.D. Ky. May 1, 2009).

There was sufficient evidence of pretext for summary judgment purposes on the disability discrimination claim where (1) the employee presented sufficient evidence from which a jury could determine that the employer knew or had reason to know of the employee’s tuberculosis; and (2) the temporal proximity between the disclosure of the employee’s condition and the decision to lay him off gave rise to an inference that the reason proffered by the employer was pretext. Thomas v. Mech. Consultants, Inc., 655 F. Supp. 2d 756, 2009 U.S. Dist. LEXIS 65934 (W.D. Ky. 2009 ).

Terminated employee was disabled because her morbid obesity had an underlying physiological cause, the impairment affected one or more of her body systems since she had developed diabetes, and it substantially limited one or more major life activities. A former employer was unable to rebut the prima facie case of discrimination with a legitimate nondiscriminatory reason where no specific reason was given for the termination other than the employee’s appearance. Pennington v. Wagner's Pharm., Inc., 2013 Ky. App. LEXIS 104 (Ky. Ct. App.), sub. op., 2013 Ky. App. Unpub. LEXIS 1004 (Ky. Ct. App. July 12, 2013).

Denial of tenure was not shown to be disability discrimination based on a university professor's bipolar disorder since there was no evidence that anyone involved in the tenure decision was aware of the professor's diagnosis, and criticism of the professor's disorganization was recognition of a lack of effectiveness rather than a perceived disability. Frieder v. Morehead State Univ., 770 F.3d 428, 2014 U.S. App. LEXIS 20554 (6th Cir. Ky. 2014 ).

Employee’s failure to accommodate claim failed because, even though the length of the employee’s incapacitation was disabling, (1) the employee gave no estimated return date or assurance the employee could work in the near future, (2) the employee could not do the employee’s job’s essential duties with a Family Medical Leave Act (FMlA) leave accommodation, and (3) the employee’s FMLA leave request sought no reasonable accommodation, as it was unknown when or if the employee could return. Larison v. Home of the Innocents, 551 S.W.3d 36, 2018 Ky. App. LEXIS 135 (Ky. Ct. App. 2018).

Circuit court properly dismissed an employee’s complaint for damages resulting from the employer’s termination of his employment because the employee failed to state a claim supported by the Kentucky Civil Rights Act where, while he was absent from work attending his disabled wife, the stated purpose of the Act was intended to protect those individuals with disabilities, not individuals associated with those suffering disabilities; such as a family member or spouse; and other related statutes made no mention of an associational disability, and there was nothing indicating the General Assembly had shown any intent to extend protection to those who associated with persons with disabilities. Barnett v. Cent. Ky. Hauling, LLC, 2018 Ky. App. LEXIS 320 (Ky. Ct. App. Dec. 21, 2018).

8. Real Estate Operator.

Municipal housing authority was a real estate operator within the definition of this section. Middlesboro Housing Authority v. Kentucky Com. on Human Rights, 553 S.W.2d 57, 1977 Ky. App. LEXIS 737 (Ky. Ct. App. 1977).

9. Appointment of Employees.

If the Commission of Human Rights tried to delegate its discretionary authority to appoint employees to its Executive Director, such a delegation would be invalid as a regulatory attempt to alter or enlarge the terms of this chapter. Martin v. Commonwealth, 711 S.W.2d 866, 1986 Ky. App. LEXIS 1169 (Ky. Ct. App. 1986).

10. County as Employer.

As defined under subsection (1) and KRS 344.030(2), a county and its officials are a political subdivision of the state, and if they employ eight or more persons, they are not immune from suit under this chapter. Lococo v. Barger, 958 F. Supp. 290, 1997 U.S. Dist. LEXIS 4262 (E.D. Ky. 1997 ), aff'd in part and rev'd in part, 234 F.3d 1268, 2000 U.S. App. LEXIS 35187 (6th Cir. Ky. 2000 ).

Since county and its officials as political subdivisions of the state are employers they are not immune from suit by employees under this chapter. Lococo v. Barger, 958 F. Supp. 290, 1997 U.S. Dist. LEXIS 4262 (E.D. Ky. 1997 ), aff'd in part and rev'd in part, 234 F.3d 1268, 2000 U.S. App. LEXIS 35187 (6th Cir. Ky. 2000 ).

11. Quotas.

Quotas are an acceptable remedy for correcting illegal racial segregation but the imposition of a quota-remedy will be approved only where it is supported by substantial evidence and findings of fact which indicate that the relevant problems have been considered, that such a remedy is needed to correct the situation which exists and that the prescribed method is workable. Middlesboro Housing Authority v. Kentucky Com. on Human Rights, 553 S.W.2d 57, 1977 Ky. App. LEXIS 737 (Ky. Ct. App. 1977).

The Kentucky Human Rights Commission erred in establishing quotas and specific ratios without first making all the necessary findings and without first providing the housing authority the opportunity to present and try its own affirmative action program to desegregate its public housing. Middlesboro Housing Authority v. Kentucky Com. on Human Rights, 553 S.W.2d 57, 1977 Ky. App. LEXIS 737 (Ky. Ct. App. 1977).

12. Prima Facie Case.

Fired supervisory employee charging employer with sex discrimination failed to present any evidence that any other supervisory employee bothered employees during work hours after being requested not to do so or disrupted the work force over personal matters, therefore she failed to demonstrate that any other supervisor engaged in conduct “similar in all respects” or “nearly identical” to the conduct for which she was terminated and therefore, she has failed to establish a prima facie case of sex discrimination and employer is entitled to summary judgment. Mills v. Gibson Greetings, 872 F. Supp. 366, 1994 U.S. Dist. LEXIS 19291 (E.D. Ky. 1994 ).

As to the sufficiency of the evidence claim, the employee had produced sufficient evidence to establish a prima facie case of retaliation: (1) she had made a sexual harassment complaint of which the employer was aware; (2) she was terminated; and (3) offered circumstantial evidence of causation. Layne v. Huish Detergents, Inc., 40 Fed. Appx. 200, 2002 U.S. App. LEXIS 14015 (6th Cir. Ky. 2002 ).

While an employee claimed that the employee was not offered an interview for an open position because of the employee’s gender, the evidence showed that the employee had withdrawn from consideration for the position; thus, the employer was granted summary judgment on the claim of gender discrimination. Carpenter v. Healthsouth Corp., 290 F. Supp. 2d 762, 2003 U.S. Dist. LEXIS 24273 (W.D. Ky. 2003 ).

Former employee failed to establish a prima facie case of wage discrimination under the Kentucky Civil Rights Act, KRS 344.010 et seq., and KRS 337.423 because no other employee performed work that was equal or similar to that of the employee and when the employee left the employer, her duties and responsibilities were subsumed into a higher and more comprehensive position with greater qualifications and educational requirements. Wiseman v. Whayne Supply Co., 2004 U.S. Dist. LEXIS 27268 (W.D. Ky. Jan. 5, 2004).

Former employee failed to prove a prima facie case for gender discrimination due to her termination under the Kentucky Civil Rights Act, KRS 344.010 et seq., because she was not replaced by anyone, in that her job was eliminated with another individual assigned to perform her duties in addition to other duties, and there was no discriminatory intent shown where no one disputed that the employer faced economic problems. Wiseman v. Whayne Supply Co., 2004 U.S. Dist. LEXIS 27268 (W.D. Ky. Jan. 5, 2004).

Former employee failed to state a claim for wrongful discharge under the Kentucky Civil Rights Act, KRS 344.010 et seq., because she failed to show that her discharge came within the public policy exception of the at-will employment doctrine. Although the employee alleged that she was fired because she insisted upon compliance with state and federal environmental laws and regulations, she did not provide specific statutory provisions for the court to consider whether civil remedies were available, and the employee did not follow the whistle blower provisions of the Toxic Substances Control Act, 15 U.S.C.S. § 2622 and the Air Pollution Prevention and Control Act, 15 U.S.C.S. § 7622, causing her wrongful discharge to fail. Wiseman v. Whayne Supply Co., 2004 U.S. Dist. LEXIS 27268 (W.D. Ky. Jan. 5, 2004).

One employee failed to state a prima facie case of sexual harassment under the Kentucky Civil Rights Act (KCRA), KRS 344.010 et seq., against her employer due to conduct by a supervisor where the employee related only three (3) incidents of distasteful and boorish behavior by the male supervisor over a period of two and a half (21/2) years. The claim fell short of being sufficiently pervasive, hostile, or abusive to support a prima facie claim of hostile work environment against the employer under the KCRA. Clark v. UPS, 400 F.3d 341, 2005 FED App. 0116P, 2005 U.S. App. LEXIS 3916 (6th Cir. Ky. 2005 ).

Where the employee alleged facts that tended to show control of the employer by its parent corporation, and the employee alleged that an officer of the parent corporation was involved in the decision to discharge the employee, and the employee further alleged that the officer had made statements that potentially showed a bias of discrimination, including bias regarding age and ethnicity, the employee sufficiently stated discrimination claims against the parent corporation. Bond v. Douglas Autotech Corp., 2005 U.S. Dist. LEXIS 32364 (W.D. Ky. Dec. 7, 2005).

Employee failed to show gender or age discrimination under the Kentucky Civil Rights Act, KRS 344.010 , et seq., because other females had been hired for a specialty sales representative position and the disparity of incomes between the employee and those sales representatives included females and males compared to the employee; furthermore, there was no evidence that the employee was reassigned to an office-based position because of her age. Clark v. Sanofi-Synthelabo, Inc., 489 F. Supp. 2d 759, 2007 U.S. Dist. LEXIS 19332 (W.D. Ky. 2007 ).

13. Liability.

Employer was relieved of liability under Title VII and this chapter as a matter of law, where it implemented and enforced policies explicitly prohibiting sexual harrassment, and upon plaintiff’s filing of her complaint, took prompt and remedial action. Wathen v. GE, 115 F.3d 400, 1997 FED App. 0176P, 1997 U.S. App. LEXIS 13586 (6th Cir. Ky. 1997 ).

An individual employee/supervisor who does not otherwise qualify as an employer cannot be held liable in their individual capacity under Title VII or this chapter. Wathen v. GE, 115 F.3d 400, 1997 FED App. 0176P, 1997 U.S. App. LEXIS 13586 (6th Cir. Ky. 1997 ).

Stockbroker’s claims of sexual harrassment, retaliation, and violation of equal pay law all arose out of her employment and such claims are subject to arbitration under agreement she was required to sign as a condition of her employment; however, the only connection her claims of sexual assault and battery and false imprisonment had with her employment was that they were committed by a co-worker and all occurred while on a business trip and thus action on these claims can be brought under this chapter. Hill v. J.J.B. Hilliard, W.L. Lyons, Inc., 945 S.W.2d 948, 1996 Ky. App. LEXIS 107 (Ky. Ct. App. 1996), modified, 1996 Ky. App. LEXIS 155 (Ky. Ct. App. Sept. 20, 1996), cert. denied, 522 U.S. 981, 118 S. Ct. 442, 139 L. Ed. 2d 378, 1997 U.S. LEXIS 6912 (U.S. 1997).

An individual employee/supervisor, who does not qualify as an “employer”, may not be held personally liable under Title VII or under the Kentucky Civil Rights Act. Walker v. MDM Servs. Corp., 997 F. Supp. 822, 1998 U.S. Dist. LEXIS 6728 (W.D. Ky. 1998 ).

Employees’ hostile work environment and racial discrimination claims failed on summary judgment as sporadic harassment evincing an offensive environment was not so hostile so as to impose liability on the employer under Kentucky’s Civil Rights Act, KRS 344.010 et seq., which used the same standards for imposing liability as Title VII of the Civil Rights Act of 1964, 42 USCS § 2000e et seq. Wilson v. Dana Corp., 210 F. Supp. 2d 867, 2002 U.S. Dist. LEXIS 12298 (W.D. Ky. 2002 ).

Dismissal of an owner’s sexual harassment case against a State and a governor was affirmed where the owner was not an employee of the State or the governor, and failed to show that she was denied access to housing, insurance, financial services, public accommodations, or government-supported facilities due to termination of her relationship with the governor. Conner v. Patton, 133 S.W.3d 491, 2004 Ky. App. LEXIS 101 (Ky. Ct. App. 2004).

Employee’s allegation that he was severely humiliated by a supervisor’s harassment regarding his disability potentially stated an intentional infliction of emotion distress claim that was not subsumed by the Kentucky Civil Rights Act claim against the employer. Long v. Hoffman Enclosures, Inc., 2008 U.S. Dist. LEXIS 49910 (E.D. Ky. June 23, 2008).

Retaliation claims asserted against five individual employees were not dismissed because they fit the definition of persons under the Kentucky Civil Rights Act, KRS 344.010(1), and the Act permitted claims against individuals when retaliation was asserted. Banks v. Bosch Rexroth Corp., 2014 U.S. Dist. LEXIS 28043 (E.D. Ky. Mar. 5, 2014).

14. Jury Trial.

The Kentucky Civil Rights Act creates a jural right as well as a right to redress by administrative procedure. To the extent it creates a jural right both plaintiff and defendant are entitled to a trial by jury. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

15. Damages.

Compensatory damages for psychological distress, humiliation, pain and suffering may not be awarded by the Circuit Court in an action brought under the Age Discrimination in Employment Act of 1967 (ADEA), 29 USCS, section 621 et seq., or under the Kentucky Civil Rights Act, KRS 344.010 et seq. Berry v. General Electric Co., 541 F. Supp. 800, 1982 U.S. Dist. LEXIS 13189 (W.D. Ky. 1982 ), disapproved, Mitchell v. Seaboard S. Railroad, 883 F.2d 451, 1989 U.S. App. LEXIS 12284 (6th Cir. Ky. 1989 ).

Punitive damages are available under the Kentucky Civil Rights Act, KRS 344.010 et seq. Layne v. Huish Detergents, Inc., 40 Fed. Appx. 200, 2002 U.S. App. LEXIS 14015 (6th Cir. Ky. 2002 ).

Interest may not be awarded against the Commonwealth or its agencies in connection with a judgment obtained under the Kentucky Civil Rights Act, KRS 344.010 et seq. Ky. Dep't of Corr. v. McCullough, 123 S.W.3d 130, 2003 Ky. LEXIS 180 ( Ky. 2003 ), modified, 2004 Ky. LEXIS 23 (Ky. Jan. 22, 2004), modified, 2004 Ky. LEXIS 24 (Ky. Jan. 22, 2004).

16. Preemption.

Claims for wrongful discharge were viable, despite the fact that former employees also asserted a civil rights claim for retaliatory discharge; because the statutes that declared the unlawful act of perjury under KRS ch. 523 were not the same statutes that declared and remedied civil rights violations under KRS ch. 344, the claims under KRS ch. 344 did not preempt the common law claims for wrongful discharge based on the public policy against perjured testimony. Hill v. Ky. Lottery Corp., 327 S.W.3d 412, 2010 Ky. LEXIS 317 ( Ky. 2010 ).

17. Statute of limitations.

Trial court erred in granting summary judgment for an employer because considering the complexity of a decedent’s Kentucky Civil Rights Act claims, the six months afforded her was not a sufficient opportunity to investigate her claims and to file a civil action in good faith; the decedent alleged hostile work environment over a period of several years and culminating in her termination on contrived grounds. Croghan v. Norton Healthcare, Inc., 2020 Ky. App. LEXIS 18 (Ky. Ct. App. Feb. 14, 2020).

By its express terms, the amended version of Ky. Rev. Stat. Ann. § 336.700 applies to all contracts entered before or after the statute’s effective date of June 27, 2019; since the statutory limitation period for Kentucky Civil Rights Act claims is five years, the statute prohibits any shortening of the limitation period for such claims to less than two and a half years, and any contrary provision is not enforceable. Croghan v. Norton Healthcare, Inc., 2020 Ky. App. LEXIS 18 (Ky. Ct. App. Feb. 14, 2020).

Trial court erred in granting summary judgment for an employer because the six-month period under Ky. Rev. Stat. Ann. § 336.700(3)(c) for bringing a claim arising out of a decedent’s employment was not enforceable with respect to an administrator’s Kentucky Civil Rights Act (KCRA) claims; the administrator’s KCRA claims were not barred by the six-month limitation period provided in the decedent’s employment contract. Croghan v. Norton Healthcare, Inc., 2020 Ky. App. LEXIS 18 (Ky. Ct. App. Feb. 14, 2020).

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973); Conley v. Kentucky Fried Chicken Corp., 606 F. Supp. 235, 1985 U.S. Dist. LEXIS 22171 (W.D. Ky. 1985 ); Hardesty v. Owensboro Municipal Utilities Com., 700 S.W.2d 798, 1985 Ky. App. LEXIS 586 (Ky. Ct. App. 1985); Shah v. General Electric Co., 697 F. Supp. 946, 1988 U.S. Dist. LEXIS 12591 (W.D. Ky. 1988 ); Spivey v. B.F. Goodrich Co., 246 F. Supp. 2d 714, 2003 U.S. Dist. LEXIS 1742 (W.D. Ky. 2003 ); Ky. Farm Bureau Mut. Ins. Cos. v. Henshaw, 95 S.W.3d 866, 2003 Ky. LEXIS 6 ( Ky. 2003 ); Lexington-Fayette Urban County Human Rights Comm'n v. Hands on Originals, 592 S.W.3d 291, 2019 Ky. LEXIS 431 ( Ky. 2019 ).

Notes to Unpublished Decisions

Analysis

  1. Federal Action.
  2. Disability.

4 Racial Discrimination.

12 Prima Facie Case.

13. Liability.

15. Damages.

1. Federal Action.

Unpublished decision: Teacher’s discrimination claim failed because there was no evidence that the teacher suffered an adverse employment action based on a written reprimand, the denial of professional-training opportunities, the teacher’s resignation from a committee position, the denial of a temporary position, and classroom observations. The teacher’s hostile work environment and retaliation claims also failed. Creggett v. Jefferson County Bd. of Educ., 491 Fed. Appx. 561, 2012 FED App. 0827N, 2012 U.S. App. LEXIS 16023 (6th Cir. Ky. 2012 ).

2. Disability.

Unpublished decision: Employee was not “qualified” under the Kentucky Civil Rights Act, KRS § 344.010 et seq., where she rejected a reasonable accommodation — one that she herself had initially proposed. McGuire v. Bd. of Educ. of Raceland-Worthington Indep. Schs., 116 Fed. Appx. 599, 2004 U.S. App. LEXIS 24104 (6th Cir. Ky. 2004 ).

Unpublished decision: District court properly granted summary judgment for an employer in a former employee’s action claiming that the employer discriminated against her due to a disability in violation of Kentucky’s Civil Rights Act, KRS 344.010 et seq.; in analyzing the case under the jurisprudence of the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., the evidence showed that the employee was not “disabled” within the meaning of 42 U.S.C.S. § 12102(2)(A) because the employee presented no evidence that her carpal tunnel wrist impairment substantially limited her ability to lift in her daily life outside work, that she was unable to perform any household tasks or activities that were of central importance to her daily life, or that she was unable to perform a substantial class or a broad range of jobs in various classes. Further, the evidence showed that the employer reasonably accommodated the employee for purposes of 42 U.S.C.S. § 12112(b)(5) even though the accommodation was not at the exact time of the employee’s request. Gerton v. Verizon S. Inc., 145 Fed. Appx. 159, 2005 FED App. 0725N, 2005 U.S. App. LEXIS 18062 (6th Cir. Ky. 2005 ).

Unpublished decision: Former employee’s inability to point to a former employer’s misperceptions concerning the former employee’s ability to perform “major life activities” was fatal to the success of the former employee’s claim of employment discrimination, which was raised after the former employer terminated the former employee’s employment after the employee could not pass the employer’s physical that was required for tank truck drivers. Logan v. Marathon Petroleum Co., LLC, 196 Fed. Appx. 406, 2006 FED App. 0674N, 2006 U.S. App. LEXIS 23215 (6th Cir. Ky. 2006 ).

Unpublished decision: Where an employee sustained a wrist injury, remained on leave for 24 months, and was terminated, the employee’s disability discrimination claim failed because the employee did not show that the wrist injury substantially limited a major life function, and evidence of the employee’s lifting restrictions, standing alone, was insufficient to qualify as a “disability.” Scott v. G & J Pepsi-Cola Bottlers, Inc., 391 Fed. Appx. 475, 2010 FED App. 0505N, 2010 U.S. App. LEXIS 16904 (6th Cir. Ky. 2010 ).

Unpublished decision: Where an employee with Hepatitis C was discharged, the disability discrimination claim under the Kentucky Civil Rights Act, KRS 344.010 et seq., failed because the employee did not prove that the employer regarded the employee as disabled, and the employee’s failure to follow company policy, insubordination, and hostile relationship gave the employer ample reason to discharge the employee. Breen v. Infiltrator Sys., 417 Fed. Appx. 483, 2011 FED App. 0193N, 2011 U.S. App. LEXIS 6601 (6th Cir. Ky. 2011 ).

4 Racial Discrimination.

Unpublished decision: Where former employee alleged that his former employer and a foremen discriminated against him based on his race when they removed a job posting and later re-posted the job with an additional requirement that he did not satisfy, the employer consistently asserted that it added commercial driver's license (CDL) requirement in second job posting because it needed a carman with a CDL to operate a large truck in case of emergencies. Lewis v. Norfolk & Southern Ry., 590 Fed. Appx. 467, 2014 FED App. 0800N, 2014 U.S. App. LEXIS 20631 (6th Cir. Ky. 2014 ).

12 Prima Facie Case.

Unpublished decision: Even if fired employee could make out a prima facie case by showing that another employee, who was not fired after pleading guilty to manslaughter after killing his wife in a drunk-driving accident, was a similarly-situated employee, the employer satisfied its burden by asserting that it terminated the employee for violating the employer's off-the-job drug-activity policy. Lewis v. Norfolk & Southern Ry., 590 Fed. Appx. 467, 2014 FED App. 0800N, 2014 U.S. App. LEXIS 20631 (6th Cir. Ky. 2014 ).

13. Liability.

Unpublished decision: Where an employee was terminated for keeping reimbursement checks from the sale of old pallets, even though plant managers allegedly had authorized this practice for almost 30 years, the employee's claim of promissory estoppel resulting from the employee's relying on the employer's anti-discrimination policy failed because Kentucky courts had never recognized a claim for promissory estoppel based on an employer's published policies, and the employee was limited to the remedy under Ky. Rev. Stat. Ann. ch. 344. Downs v. Bel Brands USA, Inc., 613 Fed. Appx. 515, 2015 FED App. 0395N, 2015 U.S. App. LEXIS 9344 (6th Cir. Ky. 2015 ).

15. Damages.

Unpublished decision: Where a diabetic student alleged that a school board discriminated against the student by moving the student out of the student's neighborhood school to a different school that had a full-time nurse on staff, the student was not entitled to damages, because the student pointed to no evidence that the school board knew that it would likely violate the student's rights when it assigned the student to a school with a full-time nurse. R.K. v. Bd. of Educ., 637 Fed. Appx. 922, 2016 FED App. 0079N, 2016 U.S. App. LEXIS 2060 (6th Cir. Ky. 2016 ).

Opinions of Attorney General.

An order, as an advisory matter, of the circuit judges and county judges (now county judge/executives) in reference to unfair employment practices as covered by KRS Chapter 344 is valid, but enforcement is the responsibility of the state and local human rights commissions. OAG 74-390 .

Although the fiscal court does not have the right to select deputies of the county court clerk, sheriff and jailer, for purposes of KRS Chapter 344 relating to unfair employment practices, the deputies are county employees and the fiscal court may as part of its duty to follow KRS Chapter 344 enact an ordinance prohibiting the fee officers from engaging in unfair employment practices, but enforcement is the responsibility of the state and local human rights commissions. OAG 74-390 .

Research References and Practice Aids

Kentucky Bench & Bar.

Esterle, Working Women’s Woes Under Wimberly and Their Gladness Under Guerra : Pregnancy and Employment Issues, Volume 52, No. 2, Spring 1988 Ky. Bench & B. 13.

Barth and Saunders, Are you ADA Literate?, Vol. 56, No. 4, Fall 1992 Ky. Bench & B. 8.

Hudson, Drug Testing In The Workplace — An Evolving Kentucky Employment Issue, Vol. 56, No. 4, Fall 1992, Ky. Bench & Bar 14.

Ballinger, Can the King Do No Wrong Under the Kentucky Civil Rights Act of 1966?, Vol. 63 Ky. Bench & B. 22.

Schoening & Guilfoyle, The Legal Implications of a Reduction in Force, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 12.

Alley & Mathews, Dealing with Social Media in the Workplace, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 16.

Myers, GINA: Discrimination Law is in Our DNA, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 23.

Simon, Blowing the Whistle in the Commonwealth, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 28.

Kentucky Law Journal.

Waldrop, Enforcement of the Fair Housing Act: What Role Should the Federal Government Play?, 74 Ky. L.J. 201 (1985-86).

Article: Ghosts of Horace Gray: Customary International Law as Expectation in Human Rights Litigation, 97 Ky. L.J. 615 (2008/2009).

Article: Structural Racism and the Law in America Today: An Introduction, 100 Ky. L.J. 1 (2011/2012).

Article: Racial Cartels and the Thirteenth Amendment Enforcement Power, 100 Ky. L.J. 23 (2011/2012).

Article: Overcoming Structural Barriers to Integrated Housing: A Back-to-the-Future Reflection on the Fair Housing Act’s “Affirmatively Further” Mandate, 100 Ky. L.J. 125 (2011/2012).

Article: The Iqbal Effect: The Impact of New Pleading Standards in Employment and Housing Discrimination Litigation, 100 Ky. L.J. 235 (2011/2012).

Northern Kentucky Law Review.

Bartlett, Civil Procedure, 21 N. Ky. L. Rev. 269 (1994).

Hawkins and MacGillivray, A Summary of Kentucky Employment Law Decisions, 21 N. Ky. L. Rev. 357 (1994).

Bales & Burns, A Survey of Kentucky Employment Law, 28 N. Ky. L. Rev. 219 (2001).

Jackson and Crase, A Surveyof Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

Bales and Korb, A Survey of Kentucky Employment Compensation Law: A Look At Employment Discrimination Claims Brought Under the Kentucky Civil Rights Act, 30 N. Ky. L. Rev. 71 (2003).

Burns & Fischesser, A Survey of Kentucky Employment Law, 31 N. Ky. L. Rev. 85 (2004).

Richey & Isenhath, How Recent Kentucky Courts are Applying the Retaliation Claim in Employment Cases, 33 N. Ky. L. Rev. 283 (2006).

ADA Amendments Issue: Article: The Positive Impact of the Convention on the Rights of Persons with Disabilities: A Case Study on the South Pacific and Lessons From the U.S. Experience, 37 N. Ky. L. Rev. 363 (2010).

ADA Amendments Issue: Note: Why the “New ADA” Requires an Individualized Inquiry as to What Qualifies as a “Major Life Activity”, 37 N. Ky. L. Rev. 441 (2010).

ADA Amendments Issue: Note: When Pigs Fly: Does the ADA Cover Individuals with Communicable Diseases such as Novel H1N1 Influenza, “Swine Flu”?, 37 N. Ky. L. Rev. 463 (2010).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Independent Action under KRS 344.650 , Alleging Violation of KRS 344.36, Form 308.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Employment Discrimination, § 284.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

Kentucky Instructions To Juries (Civil), 5th Ed., Employment, §§ 45.01 — 45.06.

344.015. Implementation plans for Federal Civil Rights Act, Title VI by state agencies.

  1. As used in this section, “state agency” means any department or administrative body of state government, as defined in KRS 12.010 , that is subject to the requirements of Title VI of the Federal Civil Rights Act of 1964, 42 U.S.C. secs. 2000 d et seq., and regulations promulgated thereunder.
  2. Each state agency shall:
    1. Develop a Title VI implementation plan by January 1, 1995. If required by Title VI or regulations promulgated thereunder, the implementation plan shall:
      1. Be developed with the participation of protected beneficiaries; and
      2. Include Title VI implementation plans of any subrecipients of federal funds through the state agency;
    2. Submit a copy of the implementation plan to the Auditor of Public Accounts and the Human Rights Commission; and
    3. Submit annual Title VI compliance reports and any implementation plan updates to the Auditor of Public Accounts and the Human Rights Commission by July 1, 1995, and each July 1 thereafter.
  3. The Auditor of Public Accounts shall prepare a report on the actions which state agencies are required to take to implement Title VI, and a report summarizing and evaluating, relative to the required implementation actions, the initial state agency implementation plans and including audit findings from the Auditor of Public Accounts field reviews. The Auditor of Public Accounts shall transmit the reports to the Governor, the Human Rights Commission, the Legislative Research Commission, and each state agency. The Auditor of Public Accounts may prescribe the report format, procedure, and time frame for purposes of complying with this subsection. The prescribed format, procedure, and time frame shall be established by administrative regulation pursuant to KRS Chapter 13A.
  4. In addition to being available from the promulgating state agency, all implementation plans, reports, and updates required by and submitted under subsection (2) of this section shall be available for inspection and copying under KRS 61.870 to 61.884 in the offices of the Auditor of Public Accounts.
  5. In any annual audit made of a state agency under KRS 43.050 , the Auditor of Public Accounts shall determine whether the state agency has complied with subsection (2) of this section and shall include the determination in the audit report.
  6. To the extent permitted by federal law or regulation, any increased costs incurred by a state agency, the Auditor of Public Accounts, or the Human Rights Commission under this section shall be paid from any available federal funds that may be used for implementation of Title VI of the Federal Civil Rights Act of 1964.

History. Enact. Acts 1994, ch. 204, § 1, effective July 15, 1994.

344.020. Purposes and construction of chapter — Effect.

  1. The general purposes of this chapter are:
    1. To provide for execution within the state of the policies embodied in the Federal Civil Rights Act of 1964 as amended (78 Stat. 241), Title VIII of the Federal Civil Rights Act of 1968 (82 Stat. 81), the Fair Housing Act as amended (42 U.S.C. 360), the Federal Age Discrimination in Employment Act of 1967 (81 Stat. 602), the Americans with Disabilities Act of 1990 (P.L. 101-336), and the Civil Rights Act of 1991 as amended (P.L. 102-166, amended by P.L. 102-392);
    2. To safeguard all individuals within the state from discrimination because of familial status, race, color, religion, national origin, sex, age forty (40) and over, or because of the person’s status as a qualified individual with a disability as defined in KRS 344.010 and KRS 344.030 ; thereby to protect their interest in personal dignity and freedom from humiliation, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest which would menace its democratic institutions, to preserve the public safety, health, and general welfare, and to further the interest, rights, and privileges of individuals within the state;
    3. To establish as the policy of the Commonwealth the safeguarding of the rights of an individual selling or leasing his primary residence through private sale without the aid of any real estate operator, broker, or salesman and without advertising or public display.
  2. This chapter shall be construed to further the general purposes stated in this section and the special purposes of the particular provision involved.
  3. Nothing in this chapter shall be construed as indicating an intent to exclude local laws on the same subject matter not inconsistent with this chapter.
  4. Nothing contained in this chapter shall be deemed to repeal any other law of this state relating to discrimination because of familial status, race, color, religion, national origin, sex, age forty (40) and over, or because of the person’s status as a qualified individual with a disability as defined in KRS 344.030 .

History. Enact. Acts 1966, ch. 2, Art. 1, § 101; 1966, ch. 2, Art. 6, § 604(a); 1966, ch. 2, Art. 7, § 707; 1968, ch. 167, § 2; 1972, ch. 255, § 2; 1974, ch. 104, § 2; 1980, ch. 245, § 2, effective July 15, 1980; 1992, ch. 282, § 2, effective July 14, 1992; 1994, ch. 378, § 1, effective July 15, 1994.

Compiler’s Notes.

The Federal Civil Rights Act of 1964, referred to herein, is compiled as 42 USCS §§ 1971, 1975a-1975d, 2000a-2000h-6. Title VIII of the Federal Civil Rights Act of 1968 is compiled as 42 USCS §§ 3601-3619. The Federal Age Discrimination in Employment Act of 1967 is compiled as 29 USCS §§ 621-634 and the Americans With Disabilities Act of 1990 is compiled as 29 USCS, § 706; 42 USCS § 12101, et seq. and 47 USCS §§ 152, 221, 225, 611. The Civil rights Act of 1991 is compiled as 2 USCS §§ 60 l , 1201-1224; 16 USCS § 1a-5 note; 29 USCS § 626; 42 USCS §§ 1981, 1981a, 2000e, 2000e-1, 2000e-2, 2000e-4 note, 2000e-5, 2000e-16, 12111, 12112, 12209.

NOTES TO DECISIONS

  1. Application.
  2. Dual Enforcement System.
  3. Worker’s Compensation.
  4. Individuals.
  5. Liability.
  6. — Misrepresentation by Employee.
  7. Sovereign Immunity.
  8. Relationship to Federal Statutes.
  9. Preemption.
  10. Statutory Construction.
  11. Summary Judgment.
  12. Jury Instructions.
1. Application.

Where the plaintiffs, who sought to adopt a child from a Roman Catholic charity, were placed on a list labeled “traditional Catholics” since they were members of a group not in union with the archbishop, and the plaintiffs maintained that placing them on the “traditional Catholic list was discriminatory, the trial court correctly held that the controversy was of a doctrinal or theological nature and was therefore beyond its discretion in view of the fact that the Roman Catholic Church’s government is not congregational but is prelatical with a judicatory with revisory powers. Once the purely doctrinal questions were answered by the ecclesiastical judicatory, the questions raised civilly by subsection (1) of this section and KRS 199.471 could be addressed by the civil judicatory. Clarke v. Kelly, 707 S.W.2d 358, 1986 Ky. App. LEXIS 1101 (Ky. Ct. App. 1986).

One important purpose of the Kentucky Civil Rights Act was to incorporate the anti-discrimination “policies embodied” in the Federal Civil Rights Acts of 1964 (P.L. 88-352, Title VII—Equal Employment Opportunity) as amended. But there are further purposes expressed in the Kentucky statute not specified in the federal, including “protect[ing] . . . . . personal dignity and freedom from humiliation.” Whereas the policies embodied in the Kentucky Civil Rights Act are the same as the federal counterpart, the statutory remedy provided through the court system differs markedly because of these further policy statements and because of the difference in remedy provided in KRS 344.450 as contrasted with those provided in the Federal Act, 42 USCS § 2000e-5. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

The refusal of an insurance company to issue an automobile insurance policy to an individual of Palestinian descent did not discriminate on the basis of national origin where the company’s refusal was based on an underwriting guideline which required policy holders to be citizens of the United States. Abuzant v. Shelter Ins. Co., 977 S.W.2d 259, 1998 Ky. App. LEXIS 78 (Ky. Ct. App. 1998).

A claim for same-gender sexual harassment is cognizable under the Kentucky Civil Rights Act. Brewer v. Hillard, 15 S.W.3d 1, 1999 Ky. App. LEXIS 93 (Ky. Ct. App. 1999).

Plaintiff’s complaint alleging a violation of the Kentucky Civil Rights Act, KRS 344, was not actionable because the Act did not apply to discrimination that could occur from the interaction between a citizen and a police officer. Young v. City of Radcliff, 561 F. Supp. 2d 767, 2008 U.S. Dist. LEXIS 40960 (W.D. Ky. 2008 ).

Defendants sought and provided suitable means of reasonably accommodating plaintiff child’s diabetes and have submitted a factual record indicating that it conscientiously carried out its obligation to do so; defendants decision to enroll the child at a school, where nursing services would be available, was objectively reasonable in light of the situation. While this was not the child’s first choice of schools, the child failed to articulate any reason that the school was unreasonable or insufficient to provide an adequate education. R.K. ex rel. J.K. v. Bd. of Educ., 755 F. Supp. 2d 800, 2010 U.S. Dist. LEXIS 132930 (E.D. Ky. 2010 ), aff'd in part, vacated in part, 494 Fed. Appx. 589, 2012 FED App. 0906N, 2012 U.S. App. LEXIS 17386 (6th Cir. Ky. 2012 ).

Neither the Americans with Disabilities Act, § 504 of the Rehabilitation Act, 29 U.S.C.S. § 794, nor the Kentucky Civil Rights Act, KRS 344.010 et seq., require school districts to modify school programs in order to ensure neighborhood placements when necessary services and a free and appropriate education are available at another site within the district. R.K. ex rel. J.K. v. Bd. of Educ., 755 F. Supp. 2d 800, 2010 U.S. Dist. LEXIS 132930 (E.D. Ky. 2010 ), aff'd in part, vacated in part, 494 Fed. Appx. 589, 2012 FED App. 0906N, 2012 U.S. App. LEXIS 17386 (6th Cir. Ky. 2012 ).

2. Dual Enforcement System.

In reading this chapter as a whole, it appears that the Legislature created a dual system for enforcement of the Kentucky Civil Rights Act, one through the administrative process and one through Circuit Court action, and the two procedures are to be alternative, not identical means of obtaining relief. Berry v. General Electric Co., 541 F. Supp. 800, 1982 U.S. Dist. LEXIS 13189 (W.D. Ky. 1982 ), disapproved, Mitchell v. Seaboard S. Railroad, 883 F.2d 451, 1989 U.S. App. LEXIS 12284 (6th Cir. Ky. 1989 ).

3. Worker’s Compensation.

KRS 342.690 does not preclude claims for damages brought pursuant to the Kentucky Civil Rights Act, KRS 344.010 et seq., which provides a specific and independent cause of action to remedy employment discrimination; however, the rules regarding election of remedies may preclude recovery under the Civil Rights Act for an injury compensated under the Workers' Compensation Act. Gardinella v. General Elec. Co., 833 F. Supp. 617, 1993 U.S. Dist. LEXIS 14553 (W.D. Ky. 1993 ).

Claims for damages against employer brought by employee pursuant to the Kentucky Civil Rights Act were not precluded by agreement entered into between employer and employee since the agreement was entered to settle compensation claims brought before the Compensation Board, did not release employer from liability under the Civil Rights Act and only compensated employee for physical injuries. Gardinella v. General Elec. Co., 833 F. Supp. 617, 1993 U.S. Dist. LEXIS 14553 (W.D. Ky. 1993 ).

The “tier-down” provisions of KRS 342.730(4) do not conflict with the age discrimination provisions of KRS Chapter 344; that chapter does not pertain to enactments of the Legislature, and moreover, there is no evidence that claimant did not receive the full benefit of the Workers’ Compensation Act due to his age. Wynn v. Ibold, Inc., 969 S.W.2d 695, 1998 Ky. LEXIS 92 ( Ky. 1998 ).

4. Individuals.

Individuals are not liable for their actions under Title VII or this chapter. Woodrum v. Lane Bryant The Ltd., 964 F. Supp. 243, 1997 U.S. Dist. LEXIS 7168 (W.D. Ky. 1997 ).

The statute does not protect individuals from discrimination. Wymer v. JH Props., Inc., 50 S.W.3d 195, 2001 Ky. LEXIS 94 ( Ky. 2001 ).

5. Liability.

Where the employee alleged that the employer forced the employee to participate in discriminatory activity against a fellow employee and that these actions violated KRS 344.020(1)(b) and constituted the common law tort of outrageous conduct, the statutory civil rights claim under KRS 344.020(1)(b) preempted the common law claim. Kroger Co. v. Buckley, 113 S.W.3d 644, 2003 Ky. App. LEXIS 137 (Ky. Ct. App. 2003), writ denied, 177 S.W.3d 778, 2005 Ky. LEXIS 345 ( Ky. 2005 ).

6. — Misrepresentation by Employee.

Misrepresentations by an employee on his employment application will not bar a suit for employment discrimination under the Civil Rights Act. Toyota Motor Mfg., U.S.A. v. Epperson, 945 S.W.2d 413, 1996 Ky. LEXIS 120 ( Ky. 1996 ).

In an employment discrimination case the case of McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S. Ct. 879, 130 L. Ed. 2d 852, 1995 U.S. LEXIS 699 (1995) could be used for guidance as to the admission and use of evidence of misrepresentation on the employee’s employment application in determination of damages and appropriate instructions. Toyota Motor Mfg., U.S.A. v. Epperson, 945 S.W.2d 413, 1996 Ky. LEXIS 120 ( Ky. 1996 ).

7. Sovereign Immunity.

The Commonwealth of Kentucky has waived sovereign immunity for claims brought under the Kentucky Civil Rights Act. Department of Corrections v. Furr, 23 S.W.3d 615, 2000 Ky. LEXIS 43 ( Ky. 2000 ).

8. Relationship to Federal Statutes.

Where the court granted summary judgment on a the plaintiff’s claim under the federal Americans With Disabilities Act (ADA), it necessarily followed by granting summary judgment on her claim arising under the Kentucky Civil Rights Act (KCRA) since the KCRA provides no more protection than the ADA. Noel v. Elk Brand Mfg. Co., 53 S.W.3d 95, 2000 Ky. App. LEXIS 27 (Ky. Ct. App. 2000).

9. Preemption.

Employer was entitled to summary judgment on an employee’s common law claim of conspiracy because it was time-barred under KRS 413.140(1), and alternatively it was preempted by the Kentucky Civil Rights Act. Szabo v. UPS, Inc., 2004 U.S. Dist. LEXIS 10600 (W.D. Ky. May 24, 2004).

10. Statutory Construction.

By clear implication, albeit not expressly, KRS 141.010(11)(d) grants the Kentucky Commission on Human Rights (KCHR) authority to investigate to determine whether private clubs discriminate because of race such that their members are not entitled to a tax deduction for membership fees. Commonwealth v. Pendennis Club, Inc., 153 S.W.3d 784, 2004 Ky. LEXIS 285 ( Ky. 2004 ).

11. Summary Judgment.

Defendants were entitled to summary judgment on civil rights claims asserted by deputy sheriff who was discharged after he was convicted of hindering prosecution and official misconduct; although the deputy alleged that he suffered emotional injuries on the job, the section of his complaint devoted to his claim under KRS 344.040(1) and KRS 344.020 set forth confusing allegations and the deputy offered no evidence in support of those allegations. Humphrey v. Scott County Fiscal Court, 2005 U.S. Dist. LEXIS 32362 (E.D. Ky. Dec. 9, 2005), aff'd, 211 Fed. Appx. 390, 2006 FED App. 0861N, 2006 U.S. App. LEXIS 29193 (6th Cir. Ky. 2006 ).

12. Jury Instructions.

In the employee’s age discrimination action, the trial court erred by instructing the jury to decide whether the employer replaced the employee with a substantially younger person based on circumstantial evidence rather than making that determination itself. The error was not harmless because the employee was justified in assuming that the 12-year age difference between herself and the worker that replaced her was more than enough to satisfy the requirement and the jury could have found in favor of the employer because they did not find that the employee was replaced by a substantially younger person. Norton Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696, 2020 Ky. LEXIS 180 ( Ky. 2020 ).

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973); Middlesboro Housing Authority v. Kentucky Com. on Human Rights, 553 S.W.2d 57, 1977 Ky. App. LEXIS 737 (Ky. Ct. App. 1977); Kentucky Com. on Human Rights v. Owensboro, 750 S.W.2d 422, 1988 Ky. LEXIS 12 ( Ky. 1988 ); Easton v. Louisville & Jefferson County Bd. of Health, 706 F. Supp. 536, 1987 U.S. Dist. LEXIS 14491 (W.D. Ky. 1987 ); White v. Rainbo Baking Co., 765 S.W.2d 26, 1988 Ky. App. LEXIS 181 (Ky. Ct. App. 1988); Harness v. Hartz Mountain Corp., 877 F.2d 1307, 1989 U.S. App. LEXIS 9181 (6th Cir. 1989); Horner ex rel. Horner v. Kentucky High Sch. Ath. Ass’n, 206 F.3d 685, 2000 FED App. 96P, 2000 U.S. App. LEXIS 4282 (6th Cir. 2000).

Opinions of Attorney General.

Cities are employers subject to provisions of this chapter and may not discriminate, by statute, ordinance or regulation, for employment purposes against persons between the ages of 40 and 65. OAG 74-138 .

The purpose of KRS Chapter 344 is to protect the civil rights of all individuals within the Commonwealth. OAG 79-608 .

The Fayette Urban County Government Human Rights Commission is fully authorized to handle complaints against the state or its agencies concerning civil rights violations in Fayette County even though the complaining employee is a merit employee of the state or its agencies. OAG 83-482 .

Research References and Practice Aids

Kentucky Bench & Bar.

Schoening & Guilfoyle, The Legal Implications of a Reduction in Force, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 12.

Alley & Mathews, Dealing with Social Media in the Workplace, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 16.

Myers, GINA: Discrimination Law is in Our DNA, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 23.

Northern Kentucky Law Review.

Hawkins and MacGillivray, A Summary of Kentucky Employment Law Decisions, 21 N. Ky. L. Rev. 357 (1994).

Bales and Korb, A Survey of Kentucky Employment Compensation Law: A Look At Employment Discrimination Claims Brought Under the Kentucky Civil Rights Act, 30 N. Ky. L. Rev. 71 (2003).

344.025. Construction of KRS Chapter 18A.

No provision in KRS Chapter 18A shall be construed to preclude any classified or unclassified state employee from appealing to the personnel board any action alleged to be in violation of laws prohibiting discrimination based on a person’s status as a qualified individual with a disability, sex, age, religion, or race or national origin, in accordance with this chapter.

History. Enact. Acts 1986, ch. 494, § 27, effective July 15, 1986; 1992, ch. 282, § 3, effective July 14, 1992; 1994, ch. 378, § 2, effective July 15, 1994.

344.030. Definitions for KRS 344.030 to 344.110.

For the purposes of KRS 344.030 to 344.110 :

  1. “Qualified individual with a disability” means an individual with a disability as defined in KRS 344.010 who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s disability without undue hardship on the conduct of the employers’ business. Consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job;
  2. “Employer” means a person who has eight (8) or more employees within the state in each of twenty (20) or more calendar weeks in the current or preceding calendar year and an agent of such a person, except for purposes of determining accommodations for an employee’s own limitations related to her pregnancy, childbirth, or related medical conditions, employer means a person who has fifteen (15) or more employees within the state in each of twenty (20) or more calendar weeks in the current or preceding calendar year and any agent of the person, and, except for purposes of determining discrimination based on disability, employer means a person engaged in an industry affecting commerce who has fifteen (15) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year, and any agent of that person, except that, for two (2) years following July 14, 1992, an employer means a person engaged in an industry affecting commerce who has twenty-five (25) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding year, and any agent of that person. For the purposes of determining discrimination based on disability, employer shall not include:
    1. The United States, a corporation wholly owned by the government of the United States, or an Indian tribe; or
    2. A bona fide private membership club (other than a labor organization) that is exempt from taxation under Section 501(c) of the Internal Revenue Service Code of 1986;
  3. “Employment agency” means a person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such person;
  4. “Labor organization” means a labor organization and an agent of such an organization, and includes an organization of any kind, an agency or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and a conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization;
    1. “Employee” means an individual employed by an employer, but does not include an individual employed by his parents, spouse, or child, or an individual employed to render services as a domestic in the home of the employer. (5) (a) “Employee” means an individual employed by an employer, but does not include an individual employed by his parents, spouse, or child, or an individual employed to render services as a domestic in the home of the employer.
    2. Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisee, neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purpose under this chapter.
    3. Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisor, neither a franchisor nor a franchisor’s employee shall be deemed to be an employee of the franchisee for any purpose under this chapter.
    4. For purposes of this subsection, “franchisee” and “franchisor” have the same meanings as in 16 C.F.R. sec. 436.1;
  5. “Reasonable accommodation”:
    1. Means making existing facilities used by employees readily accessible to and usable by individuals with disabilities, job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities; and
    2. For an employee’s own limitations related to her pregnancy, childbirth, or related medical conditions, may include more frequent or longer breaks, time off to recover from childbirth, acquisition or modification of equipment, appropriate seating, temporary transfer to a less strenuous or less hazardous position, job restructuring, light duty, modified work schedule, and private space that is not a bathroom for expressing breast milk;
  6. “Religion” means all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business;
    1. The terms “because of sex” and “on the basis of sex” include but are not limited to because of or on the basis of pregnancy, childbirth, or related medical conditions, and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. (8) (a) The terms “because of sex” and “on the basis of sex” include but are not limited to because of or on the basis of pregnancy, childbirth, or related medical conditions, and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.
    2. “Related medical condition” includes but is not limited to lactation or the need to express breast milk for a nursing child and has the same meaning as in the Pregnancy Discrimination Act, 42 U.S.C. sec. 2000 e(k), and shall be construed as that term has been construed under that Act; and
  7. “Undue hardship,” for purposes of disability discrimination or limitations due to pregnancy, childbirth, or related medical conditions as described in KRS 344.040(1)(c), means an action requiring significant difficulty or expense, when considered in light of the following factors:
    1. The nature and cost of the accommodation needed;
    2. The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at the facility; the effect on expenses and resources; or the impact otherwise of such accommodation upon the operation of the facility;
    3. The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; and the number, type, and location of its facilities;
    4. The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity; and
    5. In addition to paragraphs (a) to (d) of this subsection, for pregnancy, childbirth, and related medical conditions, the following factors:
      1. The duration of the requested accommodation; and
      2. Whether similar accommodations are required by policy to be made, have been made, or are being made for other employees due to any reason.

HISTORY: Enact. Acts 1966, ch. 2, Art. 3, § 301; 1974, ch. 187, § 1; 1980, ch. 245, § 3, effective July 15, 1980; 1992, ch. 282, § 4, effective July 14, 1992; 1994, ch. 378, § 3, effective July 15, 1994; 2017 ch. 24, § 5, effective June 29, 2017; 2019 ch. 200, § 1, effective June 27, 2019.

Compiler's Notes.

Section 501(c) of the Internal Revenue Code 1986 referred to in subsection (2)(b) of this section is compiled as 26 USCS § 501(c).

Legislative Research Commission Notes.

(6/27/2019). 2019 Ky. Acts ch. 200, sec. 3, provides that 2019 Ky. Acts ch. 200 may be cited as the Kentucky Pregnant Workers Act. This statute was amended in Section 1 of that Act.

NOTES TO DECISIONS

Analysis

  1. Constitutionality.
  2. Religion.
  3. Heart Attack.
  4. Employer.
  5. Reasonable Accomodation.
  6. Qualified Individual.
  7. Employee.
  8. Individual.
  9. Sex Discrimination.
  10. Pregnancy.
1. Constitutionality.

KRS 344.040 and subsection (5) (now subsection (7)) of this section prohibiting employers from discriminating on the basis of religion unless the employer is unable to reasonably accommodate to the employee’s religious observance do not violate the establishment clauses of the federal or state constitutions since the statutes have a secular purpose to promote equal employment opportunity, do not have a primary effect which either advances or inhibits religion and do not involve excessive entanglement of the government in religion. Kentucky Com. on Human Rights v. Kerns Bakery, Inc., 644 S.W.2d 350, 1982 Ky. App. LEXIS 277 (Ky. Ct. App. 1982), cert. denied, 462 U.S. 1133, 103 S. Ct. 3115, 77 L. Ed. 2d 1369, 1983 U.S. LEXIS 635 (U.S. 1983).

2. Religion.

This section requires employers to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship. Kentucky Com. on Human Rights v. Commonwealth, Dep't for Human Resources, Hazelwood Hospital, 564 S.W.2d 38, 1978 Ky. App. LEXIS 496 (Ky. Ct. App. 1978).

Where a state hospital made no attempts at accommodating the religious beliefs of a would-be employee, while the employee made a genuine attempt at a solution, the hospital and its parent agency did not perform their duty to make reasonable accommodations short of undue hardship. Kentucky Com. on Human Rights v. Commonwealth, Dep't for Human Resources, Hazelwood Hospital, 564 S.W.2d 38, 1978 Ky. App. LEXIS 496 (Ky. Ct. App. 1978).

The claims of an employee for religious discrimination, under KRS 344.030 , and hostile work environment were dismissed on summary judgment where the employee was allegedly terminated for an outburst at her place of employment; her claim for retaliation presented material issues of fact. Gibson v. Finish Line, Inc., 261 F. Supp. 2d 785, 2003 U.S. Dist. LEXIS 6942 (W.D. Ky. 2003 ).

3. Heart Attack.

Pursuant to subsection (6) of this section and KRS 344.040(1), an employer did not discriminate against an employee who suffered a heart attack and who was considered to have resigned when he was unable to return to work within the 90-day leave period afforded to those who suffer from illness or nonwork related injuries, where said employer allowed a period of up to one year for the return of employees taking leave for maternity related reasons. Harness v. Hartz Mountain Corp., 877 F.2d 1307, 1989 U.S. App. LEXIS 9181 (6th Cir. Ky. 1989 ), cert. denied, 493 U.S. 1024, 110 S. Ct. 728, 107 L. Ed. 2d 747, 1990 U.S. LEXIS 45 (U.S. 1990).

4. Employer.

Court of Appeals properly sustained the decision to grant summary judgment on the charge of unlawful discrimination because none of the defendants qualified as an employer pursuant to the definition in subsection (2) of this section. Palmer v. International Ass'n of Machinists, 882 S.W.2d 117, 1994 Ky. LEXIS 54 ( Ky. 1994 ).

In considering whether a parent company or union my be joined together with other entities or subsidiaries to meet the minimum number of employees under the statute to be defined as an “employer,” four factors have been applied in several federal jurisdictions: 1) interrelation of operations, 2) common management, 3) centralized control of labor relations, and 4) common ownership or financial control. Palmer v. International Ass'n of Machinists, 882 S.W.2d 117, 1994 Ky. LEXIS 54 ( Ky. 1994 ).

The International Association of Machinists (IAM), its district lodges, and its local lodges were not one employer as contemplated by subsection (2) of this section and KRS 344.040(1) where the operations of the IAM, the district lodges, and the local lodges were distinct. Palmer v. International Ass'n of Machinists, 882 S.W.2d 117, 1994 Ky. LEXIS 54 ( Ky. 1994 ).

Supervisor did not qualify as an employer as defined by the Kentucky Civil Rights Act, and could not be held individually liable with regard to discriminatory actions of sexual harassment allegedly taken against an employee. Effinger v. Philip Morris, Inc., 984 F. Supp. 1043, 1997 U.S. Dist. LEXIS 22151 (W.D. Ky. 1997 ).

Under Kentucky Civil Rights Act, discriminatory actions by individuals acting in their official capacity as agents of their employer do not create individual liability, rather, similar to Title VII of the Civil Rights Act of 1964, 42 USCS section 2000e, the Kentucky Act is properly fulfilled by holding employers ultimately responsible for the discriminatory acts of their employees and agents. Effinger v. Philip Morris, Inc., 984 F. Supp. 1043, 1997 U.S. Dist. LEXIS 22151 (W.D. Ky. 1997 ).

As defined under subsection (2) and KRS 344.010(1), a county and its officials are a political subdivision of the state, and if they employ eight or more persons, they are not immune from suit under this chapter. Lococo v. Barger, 958 F. Supp. 290, 1997 U.S. Dist. LEXIS 4262 (E.D. Ky. 1997 ), aff'd in part and rev'd in part, 234 F.3d 1268, 2000 U.S. App. LEXIS 35187 (6th Cir. Ky. 2000 ).

A county is considered to be the employer of the assistant county attorney even if the county did not have any say in the hiring decision; the county attorney who hired the employee is an agent of the county, and the county would still be considered the employer. Lococo v. Barger, 958 F. Supp. 290, 1997 U.S. Dist. LEXIS 4262 (E.D. Ky. 1997 ), aff'd in part and rev'd in part, 234 F.3d 1268, 2000 U.S. App. LEXIS 35187 (6th Cir. Ky. 2000 ).

Since county and its officials as political subdivisions of the state are employers and are not immune from suit by employees under KRS Chapter 344. Lococo v. Barger, 958 F. Supp. 290, 1997 U.S. Dist. LEXIS 4262 (E.D. Ky. 1997 ), aff'd in part and rev'd in part, 234 F.3d 1268, 2000 U.S. App. LEXIS 35187 (6th Cir. Ky. 2000 ).

An organization for disabled American veterans was a bona fide private membership club and, therefore, was not an employer within the meaning of the statute as its core purpose was to provide social opportunities for its members. Kreate v. Disabled American Veterans, 33 S.W.3d 176, 2000 Ky. App. LEXIS 150 (Ky. Ct. App. 2000).

The explicit inclusion of the state as an employer for purposes of KRS Chapter 344 constitutes a waiver of sovereign immunity by overwhelming implication. Kentucky Dep't of Corrections v. McCullough, 2000 Ky. App. LEXIS 57 (Ky. Ct. App. May 26, 2000), aff'd in part and rev'd in part, 123 S.W.3d 130, 2003 Ky. LEXIS 180 ( Ky. 2003 ).

Because Kentucky prohibits retaliation by a “person,” liability for unlawful retaliation under KRS 344.280 does not depend on the person’s status as an “employer” under subsection (2). Lewis v. Quaker Chem. Corp., 2000 U.S. App. LEXIS 22321 (6th Cir. Ky. Aug. 24, 2000).

An individual supervisory employee is not an “employer” within the meaning of the statute. Boone v. Kent Feeds, Inc., 2001 U.S. Dist. LEXIS 9616 (W.D. Ky. July 11, 2001).

In an employment discrimination case in which a deputy sheriff asserted racial discrimination and retaliation claims against the sheriff pursuant to Title VII of the Civil Rights Act of 1964, 42 USCS § 2000e et seq., and KRS Ch. 344, the district court granted the sheriff and sheriff’s department’s Fed. R. Civ. P. 56 summary judgment motion on those claims since pursuant to United States Court of Appeals for the Sixth Circuit precedent an individual employee/supervisor, who did not otherwise qualify as an employer could not be personally held liable under Title VII and Ch. 344 mirrored Title VII. Moore v. Thomas, 2000 U.S. Dist. LEXIS 22606 (W.D. Ky. Feb. 16, 2000).

In an employment discrimination case in which a deputy sheriff asserted racial discrimination and retaliation claims against the sheriff pursuant to Title VII of the Civil Rights Act of 1964, 42 USCS § 2000e et seq., and KRS ch. 344, the District Court granted the sheriff and sheriff’s department’s Fed. R. Civ. P. 56 summary judgment motion on those claims since pursuant to United States Court of Appeals for the Sixth Circuit precedent an individual employee/supervisor, who did not otherwise qualify as an employer could not be personally held liable under Title VII and ch. 344 mirrored Title VII. Moore v. Thomas, 2000 U.S. Dist. LEXIS 22606 (W.D. Ky. Feb. 16, 2000).

Since the elected officials of the city, including the mayor and the commissioners, were considered employees under the Kentucky Civil Rights Act, the city could be categorized as an employer because it had eight or more employees. Thus, a wrongful termination lawsuit brought by the former director of parks and recreation should not have been dismissed based on the city’s argument that it did not have enough employees to be considered an employer. Kearney v. City of Simpsonville, 209 S.W.3d 483, 2006 Ky. App. LEXIS 218 (Ky. Ct. App. 2006).

Terminated employee’s claims under the Kentucky Civil Rights Act (KCRA) failed because the KCRA did not apply since no reasonable juror could find that the employer had eight or more employees in Kentucky during the relevant time period. Baker v. Becton, Dickinson & Co., 2011 U.S. Dist. LEXIS 116194 (E.D. Ky. Oct. 6, 2011), rev'd, 532 Fed. Appx. 601, 2013 FED App. 673N, 2013 U.S. App. LEXIS 15072 (6th Cir. Ky. 2013 ).

Employer was entitled to summary judgment as to a Kentucky Civil Rights Act age discrimination claim because nothing showed the employer could be combined with another employer to meet the minimum employee requirement in Ky. Rev. Stat. Ann. § 344.030(2), as neither had an ownership interest in or authority to control the other. Starr v. Louisville Graphite, Inc., 2016 Ky. App. LEXIS 58 (Ky. Ct. App. Apr. 22, 2016).

Nurse claimed the doctor’s office discriminated against her on the basis of sex, but she failed to prove that the office qualified as an employer, given that the office had six employees, not eight as required, and the jury determined that two other individuals the nurse argued were employees were not. Smith v. Lewis, 2019 Ky. App. LEXIS 115 (Ky. Ct. App.), sub. op., 2019 Ky. App. Unpub. LEXIS 903 (Ky. Ct. App. July 5, 2019), review denied, ordered not published, 2019 Ky. LEXIS 489 (Ky. Dec. 13, 2019).

Trial court correctly held that the nurse did not need to prove that the doctor and his office had eight or more employees for the jury to decide the retaliation claim; retaliation is not confined by the “employer” definition, and instead, the retaliation statute permits a “person” to be individually liable for retaliation. Smith v. Lewis, 2019 Ky. App. LEXIS 115 (Ky. Ct. App.), sub. op., 2019 Ky. App. Unpub. LEXIS 903 (Ky. Ct. App. July 5, 2019), review denied, ordered not published, 2019 Ky. LEXIS 489 (Ky. Dec. 13, 2019).

5. Reasonable Accomodation.

In suit for the wrongful discharge where the overwhelming weight of the evidence showed that plaintiff could not have returned to his job as extension press crew leader without exceeding the pyhsical limitations as described by his own doctor and others in the medical community and his own admissions on Social Security application, district court did not abuse its discretion in finding plaintiff could not perform the essential functions of his job. Blanton v. Inco Alloys Int'l, 108 F.3d 104, 1997 FED App. 0083P, 1997 U.S. App. LEXIS 3737 (6th Cir. Ky. 1997 ).

6. Qualified Individual.

To be eligible under the statute one must be a qualified individual as defined in subsection (1) of this section. Blanton v. Inco Alloys Int'l, 108 F.3d 104, 1997 FED App. 0083P, 1997 U.S. App. LEXIS 3737 (6th Cir. Ky. 1997 ).

Subsection (1), which defines a “qualified person with a disability,” places the initial burden of showing a proposed accommodation is reasonable on the employee. Noel v. Elk Brand Mfg. Co., 53 S.W.3d 95, 2000 Ky. App. LEXIS 27 (Ky. Ct. App. 2000).

Denial of tenure was not shown to be disability discrimination based on a university professor's bipolar disorder since there was no evidence that anyone involved in the tenure decision was aware of the professor's diagnosis, and criticism of the professor's disorganization was recognition of a lack of effectiveness rather than a perceived disability. Frieder v. Morehead State Univ., 770 F.3d 428, 2014 U.S. App. LEXIS 20554 (6th Cir. Ky. 2014 ).

Circuit court properly dismissed an employee’s complaint for damages resulting from the employer’s termination of his employment because the employee failed to state a claim supported by the Kentucky Civil Rights Act where, while he was absent from work attending his disabled wife, the stated purpose of the Act was intended to protect those individuals with disabilities, not individuals associated with those suffering disabilities; such as a family member or spouse; and other related statutes made no mention of an associational disability, and there was nothing indicating the General Assembly had shown any intent to extend protection to those who associated with persons with disabilities. Barnett v. Cent. Ky. Hauling, LLC, 2018 Ky. App. LEXIS 320 (Ky. Ct. App. Dec. 21, 2018).

7. Employee.

Assistant county attorney was an employee of county under the Kentucky Civil Rights Act since county attorneys and their assistants are constitutionally county officers and county attorney as agent for the county hired assistant county attorney. Lococo v. Barger, 958 F. Supp. 290, 1997 U.S. Dist. LEXIS 4262 (E.D. Ky. 1997 ), aff'd in part and rev'd in part, 234 F.3d 1268, 2000 U.S. App. LEXIS 35187 (6th Cir. Ky. 2000 ).

Independent contractors are not “employees” for purposes of actions asserting violations of the Kentucky Civil Rights Act, KRS ch. 344. Steilberg v. C2 Facility Solutions, LLC, 275 S.W.3d 732, 2008 Ky. App. LEXIS 246 (Ky. Ct. App. 2008).

A marketing specialist who was an independent contractor was not an employee under KRS 344.030(5); the independent contractor could not assert a sexual harassment claim against the company and its chief operating officer. Steilberg v. C2 Facility Solutions, LLC, 275 S.W.3d 732, 2008 Ky. App. LEXIS 246 (Ky. Ct. App. 2008).

8. Individual.

Individuals are not liable for their actions under Title VII or this chapter. Woodrum v. Lane Bryant The Ltd., 964 F. Supp. 243, 1997 U.S. Dist. LEXIS 7168 (W.D. Ky. 1997 ).

9. Sex Discrimination.

A plaintiff’s status as an unwed mother is sufficiently within the statutory definition of discrimination on the basis of sex to afford coverage, assuming the requisite burden of proof can be met. Tiller v. University of Kentucky, 55 S.W.3d 846, 2001 Ky. App. LEXIS 15 (Ky. Ct. App. 2001).

10. Pregnancy.

Former employee’s prima facie case of pregnancy discrimination failed as she could not establish either that she was qualified for her job as an infant teacher or a nexus between her pregnancy and the termination of her employment; her termination was based on the fact that she physically could not perform her job duties, not her pregnancy status. After her surgery, she was physically limited to working only half-days and no lifting for the four (4) months remaining in her pregnancy and these restrictions would have precluded anyone, not just a pregnant employee, from working as a full-time infant teacher. Bergman v. Baptist Healthcare Sys., 344 F. Supp. 2d 998, 2004 U.S. Dist. LEXIS 23407 (W.D. Ky. 2004 ), aff'd, 167 Fed. Appx. 441, 2006 FED App. 0052N, 2006 U.S. App. LEXIS 1426 (6th Cir. Ky. 2006 ).

Even if the former employee set forth a prima facie case of pregnancy discrimination, the former employer offered a legitimate, nondiscriminatory reason for termination: the employee could not perform the required duties of an infant teacher. Because the employee admitted she was physically restricted from performing her job duties, she could not prove the proffered reason had no basis in fact or was insufficient to warrant the employer’s belief that she could not perform the required work and the employee introduced no evidence that the real reason for her termination might have been her pregnancy as compared to her inability to perform her job. Bergman v. Baptist Healthcare Sys., 344 F. Supp. 2d 998, 2004 U.S. Dist. LEXIS 23407 (W.D. Ky. 2004 ), aff'd, 167 Fed. Appx. 441, 2006 FED App. 0052N, 2006 U.S. App. LEXIS 1426 (6th Cir. Ky. 2006 ).

Cited:

Evans v. General Tire & Rubber Co., Mayfield Div., 662 S.W.2d 843, 1983 Ky. App. LEXIS 389 (Ky. Ct. App. 1983); Kentucky Com. on Human Rights v. Lesco Mfg. & Design Co., 736 S.W.2d 361, 1987 Ky. App. LEXIS 559 (Ky. Ct. App. 1987).

Notes to Unpublished Decisions

1. Qualified Individual.

Unpublished decision: Employee was not “qualified” under the Kentucky Civil Rights Act, KRS 344.010 et seq., where she rejected a reasonable accommodation — one that she herself had initially proposed. McGuire v. Bd. of Educ. of Raceland-Worthington Indep. Schs., 116 Fed. Appx. 599, 2004 U.S. App. LEXIS 24104 (6th Cir. Ky. 2004 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Employment Discrimination — Race; Hiring Preference or Disparate Impact Claim, Alleging Violation of KRS 344.36, Form 284.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Employment Discrimination, § 284.00.

344.040. Unlawful discrimination by employers — Difference in health plan contribution rates for smokers and nonsmokers and benefits for smoking cessation program participants excepted.

  1. It is an unlawful practice for an employer:
    1. To fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual’s race, color, religion, national origin, sex, age forty (40) and over, because the person is a qualified individual with a disability, or because the individual is a smoker or nonsmoker, as long as the person complies with any workplace policy concerning smoking;
    2. To limit, segregate, or classify employees in any way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect status as an employee, because of the individual’s race, color, religion, national origin, sex, or age forty (40) and over, because the person is a qualified individual with a disability, or because the individual is a smoker or nonsmoker, as long as the person complies with any workplace policy concerning smoking;
    3. To fail to make reasonable accommodations for any employee with limitations related to pregnancy, childbirth, or a related medical condition who requests an accommodation, including but not limited to the need to express breast milk, unless the employer can demonstrate the accommodation would impose an undue hardship on the employer’s program, enterprise, or business. The following shall be required as to reasonable accommodations:
      1. An employee shall not be required to take leave from work if another reasonable accommodation can be provided;
      2. The employer and employee shall engage in a timely, good faith, and interactive process to determine effective reasonable accommodations; and
      3. If the employer has a policy to provide, would be required to provide, is currently providing, or has provided a similar accommodation to other classes of employees, then a rebuttable presumption is created that the accommodation does not impose an undue hardship on the employer; or
    4. To require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products outside the course of employment, as long as the person complies with any workplace policy concerning smoking.
    1. A difference in employee contribution rates for smokers and nonsmokers in relation to an employer-sponsored health plan shall not be deemed to be an unlawful practice in violation of this section. (2) (a) A difference in employee contribution rates for smokers and nonsmokers in relation to an employer-sponsored health plan shall not be deemed to be an unlawful practice in violation of this section.
    2. The offering of incentives or benefits offered by an employer to employees who participate in a smoking cessation program shall not be deemed to be an unlawful practice in violation of this section.
    1. An employer shall provide written notice of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions, including the right to reasonable accommodations, to: (3) (a) An employer shall provide written notice of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions, including the right to reasonable accommodations, to:
      1. New employees at the commencement of employment; and
      2. Existing employees not later than thirty (30) days after June 27, 2019.
    2. An employer shall conspicuously post a written notice of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions, including the right to reasonable accommodations, at the employer’s place of business in an area accessible to employees.

History. Enact. Acts 1966, ch. 2, Art. 3, § 302; 1972, ch. 255, § 3; 1980, ch. 245, § 4, effective July 15, 1980; 1990, ch. 388, § 2, effective July 13, 1990; 1992, ch. 282, § 5, effective July 14, 1992; 1994, ch. 378, § 4, effective July 15, 1994; 2010, ch. 126, § 3, effective July 15, 2010; 2019 ch. 200, § 2, effective June 27, 2019.

Legislative Research Commission Notes.

(6/27/2019). 2019 Ky. Acts ch. 200, sec. 3, provides that 2019 Ky. Acts ch. 200 may be cited as the Kentucky Pregnant Workers Act. This statute was amended in Section 2 of that Act.

(10/19/2004). 2004 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 4, sets forth different employee contribution rates to the state health insurance plan for the period January 1, 2005, through December 31, 2005, for smokers and nonsmokers and provides, “A difference in employee contribution rates for smokers and nosmokers under this plan shall not be deemed to be an unlawful practice in violation of KRS 344.040 .”

NOTES TO DECISIONS

Analysis

  1. Constitutionality.
  2. Preemption.
  3. Extraterritorial Application.
  4. Pendent Jurisdiction.
  5. Religion.
  6. Age Discrimination.
  7. Sexual Harassment.
  8. Disability.
  9. Pregnancy.
  10. Smoking.
  11. Reverse Discrimination.
  12. Wrongful Discharge.
  13. — “But for” Test.
  14. Discrimination Not Found.
  15. Waiver of Right of Action.
  16. Employer.
  17. Employee.
  18. Evidence.
  19. No Automatic Presumption.
  20. Proof.
  21. Procedure.
  22. — Arbitration.
  23. — Summary Judgment.
  24. — Directed Verdict.
  25. —Jury Instructions.
  26. Collective Bargaining Agreement.
  27. Indemnity.
  28. Damages.
  29. Ministerial Exception.
  30. Retaliation
1. Constitutionality.

KRS 344.030(5) (now subsection (7)) and this section prohibiting employers from discriminating on the basis of religion unless the employer is unable to reasonably accommodate to the employee’s religious observance do not violate the establishment clauses of the federal or state constitutions since the statutes have a secular purpose to promote equal employment opportunity, do not have a primary effect which either advances or inhibits religion and do not involve excessive entanglement of the government in religion. Kentucky Com. on Human Rights v. Kerns Bakery, Inc., 644 S.W.2d 350, 1982 Ky. App. LEXIS 277 (Ky. Ct. App. 1982), cert. denied, 462 U.S. 1133, 103 S. Ct. 3115, 77 L. Ed. 2d 1369, 1983 U.S. LEXIS 635 (U.S. 1983).

2. Preemption.

When a plaintiff prosecutes a statutory discrimination claim under the Kentucky Civil Rights Act and a common law claim of intentional infliction of emotional distress/outrageous conduct, the former preempts the latter. Ferrer v. MedaSTAT USA LLC, 2004 U.S. Dist. LEXIS 24528 (W.D. Ky. July 6, 2004), aff'd, 145 Fed. Appx. 116, 2005 FED App. 659N, 2005 U.S. App. LEXIS 16099 (6th Cir. Ky. 2005 ).

Former employee’s claims for intentional and negligent infliction of emotional distress failed because they were based on the same allegedly discriminatory conduct as her claims under the Kentucky Civil Rights Act, KRS 344.040 ; thus, those claims were subsumed by the KRS 344.040 claim, which became her exclusive remedy. Willis v. CMM of Ind., LLC, 2008 U.S. Dist. LEXIS 48293 (W.D. Ky. June 20, 2008).

3. Extraterritorial Application.

The Kentucky Civil Rights Act does not have extraterritorial application and, therefore, did not apply to alleged discrimination by a corporation with its headquarters in Kentucky against the plaintiff, who was employed in South Carolina, while living in Alabama. Union Underwear Co. v. Barnhart, 50 S.W.3d 188, 2001 Ky. LEXIS 82 ( Ky. 2001 ).

Allowing the former employee’s asserted sexual discrimination and retaliation claims would have been an extraterritorial application of the Kentucky Civil Rights Act (KCRA), which the Kentucky Supreme Court expressly prohibited; even though defendants’ decisions as to the employee’s employment were made in Kentucky, it was the fact that the employee was located outside the state of Kentucky that controlled the application of the KCRA. None of the discriminatory actions the employee claimed made up the hostile work environment, sexual harassment quid pro quo, or retaliation claims occurred in Kentucky. Ferrer v. MedaSTAT USA LLC, 2004 U.S. Dist. LEXIS 24528 (W.D. Ky. July 6, 2004), aff'd, 145 Fed. Appx. 116, 2005 FED App. 659N, 2005 U.S. App. LEXIS 16099 (6th Cir. Ky. 2005 ).

4. Pendent Jurisdiction.

Federal District Court could properly exercise its pendent jurisdiction and adjudicate plaintiff ’s state law claim for unlawful employment practices together with her Title VII cause of action where plaintiff ’s theory of recovery under Kentucky law closely paralleled that asserted under Title VII as state and federal law describe unlawful employment practices in the same terms, and evidence supporting plaintiff ’s Title VII claim could properly be considered by the jury with respect to plaintiff ’s Kentucky action. Roy v. Russell County Ambulance Service, 809 F. Supp. 517, 1992 U.S. Dist. LEXIS 20291 (W.D. Ky. 1992 ).

5. Religion.

Where employee refused to work on Saturdays because of religious beliefs, the refusal of his fellow employees to substitute for him and the unrebutted testimony of morale problems on account of attempts to accommodate his could constitute legal “undue hardship” justifying dismissal since the lost efficiency and the resulting cost to the employer as a result of it forcing others to work for him on Saturdays obviously would be more than de minimus; consequently, Commission misapplied law in concluding that employee was discharged as a result of religious discrimination. Evans v. General Tire & Rubber Co., Mayfield Div., 662 S.W.2d 843, 1983 Ky. App. LEXIS 389 (Ky. Ct. App. 1983).

6. Age Discrimination.

Where the employer testified that he terminated the employee because of inventory control problems, a personal conflict between employees, and to reduce overhead by reducing the number of supervisory personnel, the plaintiff failed to raise a prima facie case of age discrimination. Harvey v. I.T.W., Inc., 672 F. Supp. 973, 1987 U.S. Dist. LEXIS 13003 (W.D. Ky. 1987 ).

Even assuming that the employer terminated the employee to prevent his pension rights from fully vesting, this would not be probative of age discrimination since it goes to tenure with the company, not age. Harvey v. I.T.W., Inc., 672 F. Supp. 973, 1987 U.S. Dist. LEXIS 13003 (W.D. Ky. 1987 ).

Where plaintiff had not demonstrated facts sufficient to prove satisfactory job performance and defendant employer rebutted such possible inference by showing conflict between plaintiff and his supervisor which would render him an ineffective employee, plaintiff failed to establish initial inference of age discrimination. Harker v. Federal Land Bank, 679 S.W.2d 226, 1984 Ky. LEXIS 294 ( Ky. 1984 ).

The special rule for age discrimination summary judgments under this section is whether the plaintiff has proof of “cold hard facts creating an inference showing age discrimination was a determining factor” in the discharge. Harker v. Federal Land Bank, 679 S.W.2d 226, 1984 Ky. LEXIS 294 ( Ky. 1984 ).

District Court properly granted summary judgment in favor of a hospital in an action by two (2) former employees who alleged violations of 29 USCS § 623 and KRS 344.040(1); the employees’ disparate treatment claim failed because they did not raise a genuine issue of material fact as to whether the hospital’s legitimate, non-discriminatory reasons for their discharge, the employees’ alleged violation of patient privacy, was a pretext for age discrimination. Allen v. Highlands Hosp. Corp., 545 F.3d 387, 2008 FED App. 0381P, 2008 U.S. App. LEXIS 21842 (6th Cir. Ky. 2008 ).

District Court properly granted summary judgment in favor of a hospital in an action by two (2) former employees who alleged violations of 29 USCS § 623 and KRS 344.040(1); the employees’ claim that the hospital’s cost-cutting measures had a disparate impact on older employees failed because the employees did not satisfy the specific-practice requirement and did not provide sufficient statistical evidence of discriminatory impact. Allen v. Highlands Hosp. Corp., 545 F.3d 387, 2008 FED App. 0381P, 2008 U.S. App. LEXIS 21842 (6th Cir. Ky. 2008 ).

Plaintiffs, employees who were laid off, proffered some evidence of age discrimination that was sufficient to preclude summary judgment on a claim under KRS 344.040(1) for age discrimination, but presented no evidence of discrimination based on national origin; the employer claimed the layoffs were necessary to comply with disabled and blind employee requirements under a federal program. Neary v. Southeastern Voc. Servs., 2008 U.S. Dist. LEXIS 48544 (W.D. Ky. June 23, 2008).

Even assuming the professor could establish a prima facie age discrimination case, she did not rebut defendants’ legitimate reason for denial of tenure—the professor admitted to having performed no research while employed at the university and the faculty handbook clearly stated that a candidate for tenure should have a section on scholarly and creative activity as well as service in her dossier. Because the university provided a legitimate reason for not providing the professor with tenure and because she failed to show the legitimate reason was pretextual, defendants did not discriminate against the professor based on her age. Webb v. Ky. State Univ., 468 Fed. Appx. 515, 2012 FED App. 0293N, 2012 U.S. App. LEXIS 5583 (6th Cir. Ky. 2012 ).

Summary judgment was properly granted to a former employer in a former employee’s age discrimination action under KRS 344.040(1) of the Kentucky Civil Rights Act, KRS 344.010 et seq., because the employee failed to show a triable issue of material fact regarding pretext and, therefore, could not establish a genuine dispute that age discrimination was the but-for cause of the employee’s termination; the employee presented no direct evidence of discrimination because the district court correctly ruled that an alleged statement that related to terminating employees was inadmissible hearsay since there was no outside evidence sufficient to satisfy Fed. R. Evid. 801(d)(2)(D)’s scope requirement. Back v. Nestlé USA, Inc., 694 F.3d 571, 2012 FED App. 0332P, 2012 U.S. App. LEXIS 19211 (6th Cir. Ky. 2012 ).

Alleged statement by principal of employer, being sued by employee for age discrimination in violation of KRS 344.040 et seq., did not provide direct evidence of age discrimination and the employee also did not set forth inferential evidence of such discrimination. The principal’s statement merely referred to the type of employee that the employer preferred to hire and the employee did not establish that the employee was replaced by a significantly younger person when the employee was terminated from employment with the employer. Miller v. Reminger Co., L.P.A., 2012 U.S. Dist. LEXIS 78620 (W.D. Ky. June 4, 2012).

In this Kentucky Civil Rights Act action, the judgment granting summary judgment to the employer was reversed because the employee offered evidence that the supervisor used potential longevity with the company as a proxy for age; the supervisor’s comments were not so vague, general, or ambiguous as to qualify as stray comments. Sharp v. Aker Plant Servs. Group, 726 F.3d 789, 2013 FED App. 0216P, 2013 U.S. App. LEXIS 16518 (6th Cir. Ky. 2013 ).

In this Age Discrimination in Employment Act of 1967 and the Kentucky Civil Rights Act action, the grant of summary judgment to the employer was affirmed because the applicants' disagreement with the employer's assessment of their performance and their belief that the hiring system should have been based on seniority did not render the employer’s hiring decision pretextual. Johnson v. Lockheed Martin Corp., 598 Fed. Appx. 364, 2015 FED App. 0067N, 2015 U.S. App. LEXIS 1074 (6th Cir. Ky. 2015 ).

Former university employee failed to present any evidence tending to indicate that the university singled her out for discharge because of her age. Lewis-Smith v. W. Ky. Univ., 85 F. Supp. 3d 885, 2015 U.S. Dist. LEXIS 2312 (W.D. Ky. 2015 ).

Terminated employee's age discrimination claim failed as a matter of law because his employer alleged numerous and repeated performance deficiencies that the employee did not contest and the employee failed to produce evidence to allow a reasonable jury to infer that the employer's proffered reasons were pretextual and that he was actually fired because of his age. Charles v. Print Fulfillment Servs., LLC, 2015 U.S. Dist. LEXIS 132517 (W.D. Ky. Sept. 30, 2015).

Administrator adequately stated a claim for age discrimination; he pleaded that he was over 40 years old during the relevant period, he was demoted, and he was qualified for the position that he held for many years prior to his demotion; although he did not allege that his position was filled by a significantly younger person, the school system had not yet filled the position at the time the administrator filed his complaint. Hardin v. Jefferson Cty. Bd. of Educ., 558 S.W.3d 1, 2018 Ky. App. LEXIS 217 (Ky. Ct. App. 2018).

7. Sexual Harassment.

Deciding whether evidence of sexual harassment rises to the level of “severe or pervasive” contains an interpretive component. But this does not mean the reviewing court should substitute its judgment on the issue for that of the jury and the trial judge. Utilizing de novo review, is inappropriate as to ultimate fact questions determined by the jury under the Kentucky Civil Rights Act. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

Defendant routinely conducted sales meetings where plaintiff was the only woman during which he used language loaded with obscenity and sexual innuendo, and included embarrassing comments and terminology addressed directly to plaintiff. Further, on several occasions plaintiff was called to defendant’s office where conversations took place suggesting that women in general, and plaintiff in particular, were unfit for the work. Finally, there was testimony supporting the inference that defendant’s sexually demeaning attitude towards women pervaded the whole sales operation. When the evidence was considered in its entirety, with all reasonable inferences drawn in favor of the plaintiff, the prevailing party, the decision of the trial court overruling the employer’s motion for a directed verdict was not error. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

Evidence of sexual harassment plaintiff’s extra-marital affair with a co-worker, which was often the topic of gossip among employees, was properly admitted as relating to plaintiff’s work environment. Hall v. Transit Auth., 883 S.W.2d 884, 1994 Ky. App. LEXIS 22 (Ky. Ct. App. 1994).

Jury instructions in a sexual harassment suit which addressed the first element of a hostile work environment claim, unwelcome sexual advances, in a subjective manner and the remaining element, severity of conduct, using an objective standard of the reasonable female employee were not in error. Hall v. Transit Auth., 883 S.W.2d 884, 1994 Ky. App. LEXIS 22 (Ky. Ct. App. 1994).

Supervisor did not qualify as an employer as defined by the Kentucky Civil Rights Act, and could not be held individually liable with regard to discriminatory actions of sexual harassment allegedly taken against an employee. Effinger v. Philip Morris, Inc., 984 F. Supp. 1043, 1997 U.S. Dist. LEXIS 22151 (W.D. Ky. 1997 ).

Under Kentucky Civil Rights Act, discriminatory actions by individuals acting in their official capacity as agents of their employer do not create individual liability, rather, similar to Title VII of the Civil Rights Act of 1964, 42 USCS section 2000e, the Kentucky Act is properly fulfilled by holding employers ultimately responsible for the discriminatory acts of their employees and agents. Effinger v. Philip Morris, Inc., 984 F. Supp. 1043, 1997 U.S. Dist. LEXIS 22151 (W.D. Ky. 1997 ).

A board of education was properly granted dismissal of an action by an elementary school teacher alleging sexual harassment by a co-worker and teacher as the plaintiff experienced only one incident involving the harasser within the limitations period, which consisted of a brief, off-color comment, and this single incident could not constitute actionable sexual harassment as a matter of law because it did not satisfy the severe and pervasive standard and could not reasonably be thought to constitute sexual harassment. Ammerman v. Board of Educ. of Nicholas County, 30 S.W.3d 793, 2000 Ky. LEXIS 132 ( Ky. 2000 ).

Statute could be interpreted in consonance with federal anti-discrimination law, thus the affirmative defense was available to employers facing vicarious liability for sexual harassment under the statute. Bank One v. Murphy, 52 S.W.3d 540, 2001 Ky. LEXIS 140 ( Ky. 2001 ).

In an employee’s sexual harassment suit under Title VII and the Kentucky Civil Rights Act, KRS ch. 344, an employer was not entitled to judgment as a matter of law because a reasonable jury could have decided that a lateral transfer to a different location, which increased the employee’s commute to the extent that he needed to consider relocation, was a tangible employment action. Keeton v. Flying J, Inc., 429 F.3d 259, 2005 FED App. 0443P, 2005 U.S. App. LEXIS 24654 (6th Cir. Ky. 2005 ), cert. denied, 549 U.S. 819, 127 S. Ct. 109, 166 L. Ed. 2d 33, 2006 U.S. LEXIS 5817 (U.S. 2006).

Former employee, who performed maintenance work for an apartment, failed to show quid pro quo sexual harassment, in violation of the Kentucky Civil Rights Act, because he failed to show that the elimination of a certain job function, which resulted in a substantial decrease in his pay, and other alleged adverse job actions, were causally related to his supervisor’s sexual harassment and her promise regarding such work if he would travel out of town with her. Sanford v. Main St. Baptist Church Manor, Inc., 327 Fed. Appx. 587, 2009 FED App. 0352N, 2009 U.S. App. LEXIS 11549 (6th Cir. Ky. 2009 ).

employees' quid pro quo sexual harassment claims failed because the Quid pro quo sexual harassment claims by employees of a county clerk's office failed because the employees could not prove that they suffered a tangible job detriment, even though one employee was transferred to another office and another employee was terminated from the employee's position, as a result of the chief deputy's sexual advances. Gray v. Kenton County, 467 S.W.3d 801, 2014 Ky. App. LEXIS 165 (Ky. Ct. App. 2014).

8. Disability.

Even assuming anesthesiologist had sleep apnea and sleep apnea is a “disability” under the Kentucky Civil Rights laws, where the anesthesiologist’s firing was based on actual, documented reports from several occasions where he was asleep during surgery, in no way could hospital’s decision be characterized as based on an alleged disability and unlawful. Brohm v. JH Props., 947 F. Supp. 299, 1996 U.S. Dist. LEXIS 19810 (W.D. Ky. 1996 ), aff'd, 149 F.3d 517, 1998 FED App. 0224P, 1998 U.S. App. LEXIS 16924 (6th Cir. Ky. 1998 ).

Where conduct renders an employee unqualified to perform his duties, he may be terminated even if that conduct is related to a disability; thus, physician was properly terminated for sleeping during surgical procedures as a result of severe chronic sleep deprivation secondary to obstructive sleep apnea. Brohm v. JH Props., 149 F.3d 517, 1998 FED App. 0224P, 1998 U.S. App. LEXIS 16924 (6th Cir. Ky. 1998 ).

The defendant employer was not entitled to summary judgment on a cause of action alleging that a rule requiring that an employee be 100 percent healed from an injury in order to return to work was discriminatory. Henderson v. Ardco, Inc., 247 F.3d 645, 2001 FED App. 0133P, 2001 U.S. App. LEXIS 7389 (6th Cir. Ky. 2001 ).

Employee failed to present sufficient evidence that an employer perceived him as substantially impaired in either a class of jobs or a broad range of jobs as a division management position did not constitute a class of jobs; the employee presented no evidence on how the training, knowledge, skills, or abilities used in the division management position applied within the publishing industry or other jobs in the geographical area, and the lifting of bundles of newspapers was only one aspect of the job with the employer. The denial of a particular job of an employee’s choice did not concern a substantial class of jobs. Hallahan v. Courier-Journal, 138 S.W.3d 699, 2004 Ky. App. LEXIS 186 (Ky. Ct. App. 2004).

Where a former teacher with cancer alleged disability discrimination under KRS 344.040(1), the employer was granted summary judgment because the teacher failed to identify and establish a limitation of any major life activity. Turner v. Sullivan Univ. Sys., 420 F. Supp. 2d 773, 2006 U.S. Dist. LEXIS 9580 (W.D. Ky. 2006 ).

Since the language in the disability discrimination provisions of the Kentucky Civil Rights Act, KRS 344.040 , tracks the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., it should be interpreted consonant with that Act. Macy v. Hopkins County Bd. of Educ., 429 F. Supp. 2d 888, 2006 U.S. Dist. LEXIS 28035 (W.D. Ky. 2006 ), aff'd, 484 F.3d 357, 2007 FED App. 0133P, 2007 U.S. App. LEXIS 8382 (6th Cir. Ky. 2007 ).

Employee had a disability-retaliation claim under the Kentucky Civil Rights Act where she was terminated just two (2) days after leaving a voice message with the supervisor asking if she could perform seated work, and one day after conveying the same request to a senior manager. Bryson v. Regis Corp., 498 F.3d 561, 2007 FED App. 0328P, 2007 U.S. App. LEXIS 19481 (6th Cir. Ky. 2007 ).

Police detective with multiple sclerosis who sued a city for disability discrimination, constructive discharge, and disability harassment after the detective’s removal from duties established a prima facie case under KRS 344.040(1), but the detective failed to overcome the city’s proof on summary judgment that it had legitimate safety concerns based on a doctor’s note stating that the detective could no longer perform detective duties. Bohl v. City of Cold Spring, 2009 Ky. App. LEXIS 221 (Ky. Ct. App. Nov. 13, 2009).

Terminated employee was disabled because her morbid obesity had an underlying physiological cause, the impairment affected one or more of her body systems since she had developed diabetes, and it substantially limited one or more major life activities. A former employer was unable to rebut the prima facie case of discrimination with a legitimate nondiscriminatory reason where no specific reason was given for the termination other than the employee’s appearance. Pennington v. Wagner's Pharm., Inc., 2013 Ky. App. LEXIS 104 (Ky. Ct. App.), sub. op., 2013 Ky. App. Unpub. LEXIS 1004 (Ky. Ct. App. July 12, 2013).

Denial of tenure was not shown to be disability discrimination based on a university professor's bipolar disorder since there was no evidence that anyone involved in the tenure decision was aware of the professor's diagnosis, and criticism of the professor's disorganization was recognition of a lack of effectiveness rather than a perceived disability. Frieder v. Morehead State Univ., 770 F.3d 428, 2014 U.S. App. LEXIS 20554 (6th Cir. Ky. 2014 ).

In this Americans With Disabilities Act and Kentucky Civil Rights Act action, the vague assertions of the employee's concerns, absent more, could not constitute notice of an impairment that substantially limited a major life activity where the employee did not provide the director any details that would have alerted the director that the employee needed immediate medical attention, nor did he provide any details that would have alerted the director that his chronic back issues were more serious that his other complaints. Cady v. Remington Arms Co., LLC, 2016 U.S. Dist. LEXIS 2206 (W.D. Ky. Jan. 7, 2016), vacated, 665 Fed. Appx. 413, 2016 FED App. 0647N, 2016 U.S. App. LEXIS 21592 (6th Cir. Ky. 2016 ).

In this Americans With Disabilities Act and Kentucky Civil Rights Act action, the employee's failure-to-accommodate claim failed where the employee failed to make clear that the request to “mix up the work activity” was made because of his chronic back issues. Cady v. Remington Arms Co., LLC, 2016 U.S. Dist. LEXIS 2206 (W.D. Ky. Jan. 7, 2016), vacated, 665 Fed. Appx. 413, 2016 FED App. 0647N, 2016 U.S. App. LEXIS 21592 (6th Cir. Ky. 2016 ).

Where former employee, who had worked as a chef manager, failed to show disability discrimination under the ADA and the Kentucky Civil Rights Act because the employee's testimony consistently and repeatedly proclaimed that he could not function as a chef manager, even with accommodations, since he was incapable of performing the heavy lifting of at least 50 pounds, which was required to perform the essential functions of his job. Bush v. Compass Grp. USA, Inc., 683 Fed. Appx. 440, 2017 FED App. 0181N, 2017 U.S. App. LEXIS 5248 (6th Cir. Ky. 2017 ).

Where former employee, who had worked as a chef manager, failed to show disability discrimination under the ADA and the Kentucky Civil Rights Act because the employee's testimony consistently and repeatedly proclaimed that he could not function as a chef manager since he was incapable of performing the heavy lifting of at least 50 pounds, which was required to perform the essential functions of his job, the employee's request to be re-assigned to vacant positions and his request that the employer hire additional staff to perform all of his heavy physical labor for him were not reasonable accommodations. Bush v. Compass Grp. USA, Inc., 683 Fed. Appx. 440, 2017 FED App. 0181N, 2017 U.S. App. LEXIS 5248 (6th Cir. Ky. 2017 ).

In an employee's suit for discrimination in violation of the Kentucky Civil Rights Act on the basis of a perceived disability, the district court applied the correct standard in dismissing his complaint for failure to state a claim because a report that he made a threat of violence did not show that the employer regarded him as having a mental disability. Krueger v. Home Depot USA, Inc., 674 Fed. Appx. 490, 2017 FED App. 0002N, 2017 U.S. App. LEXIS 221 (6th Cir. Ky. 2017 ) (Jan. 3, 2017).

Circuit court properly dismissed an employee’s complaint for damages resulting from the employer’s termination of his employment because the employee failed to state a claim supported by the Kentucky Civil Rights Act where, while he was absent from work attending his disabled wife, the stated purpose of the Act was intended to protect those individuals with disabilities, not individuals associated with those suffering disabilities; such as a family member or spouse; and other related statutes made no mention of an associational disability, and there was nothing indicating the General Assembly had shown any intent to extend protection to those who associated with persons with disabilities. Barnett v. Cent. Ky. Hauling, LLC, 2018 Ky. App. LEXIS 320 (Ky. Ct. App. Dec. 21, 2018).

9. Pregnancy.

Former employee’s prima facie case of pregnancy discrimination failed as she could not establish either that she was qualified for her job as an infant teacher or a nexus between her pregnancy and the termination of her employment; her termination was based on the fact that she physically could not perform her job duties, not her pregnancy status. After her surgery, she was physically limited to working only half-days and no lifting for the four (4) months remaining in her pregnancy and these restrictions would have precluded anyone, not just a pregnant employee, from working as a full-time infant teacher. Bergman v. Baptist Healthcare Sys., 344 F. Supp. 2d 998, 2004 U.S. Dist. LEXIS 23407 (W.D. Ky. 2004 ), aff'd, 167 Fed. Appx. 441, 2006 FED App. 0052N, 2006 U.S. App. LEXIS 1426 (6th Cir. Ky. 2006 ).

Even if the former employee set forth a prima facie case of pregnancy discrimination, the former employer offered a legitimate, nondiscriminatory reason for termination: the employee could not perform the required duties of an infant teacher. Because the employee admitted she was physically restricted from performing her job duties, she could not prove the proffered reason had no basis in fact or was insufficient to warrant the employer’s belief that she could not perform the required work and the employee introduced no evidence that the real reason for her termination might have been her pregnancy as compared to her inability to perform her job. Bergman v. Baptist Healthcare Sys., 344 F. Supp. 2d 998, 2004 U.S. Dist. LEXIS 23407 (W.D. Ky. 2004 ), aff'd, 167 Fed. Appx. 441, 2006 FED App. 0052N, 2006 U.S. App. LEXIS 1426 (6th Cir. Ky. 2006 ).

Where a former teacher alleged pregnancy discrimination under KRS 344.040(1) after she was offered a shorter than usual renewal contract due to missing 12 days of class instruction on account of cancer surgery and the premature caesarian delivery of her child, the allegations were sufficient to survive summary judgment because there was sufficient evidence from which a reasonable jury could determine that the real reason for the short-term contract and her termination after she refused to sign the contract was the pregnancy, as her lack of availability was due in part to her pregnancy. Turner v. Sullivan Univ. Sys., 420 F. Supp. 2d 773, 2006 U.S. Dist. LEXIS 9580 (W.D. Ky. 2006 ).

Upon learning that the employee was pregnant, the employer transferred her from a daytime welding position to a daytime position in the tool room, where she worked for approximately one week before being transferred to a nighttime shift in order to keep her job. On balance, the transfer to the tool room resulted in the employee working a more inconvenient shift in a position that was less challenging and that required fewer qualifications; viewing the evidence collectively in her favor, a reasonable jury could have found that the employee’s transfer to the tool room constituted an adverse employment action. Spees v. James Marine, Inc., 617 F.3d 380, 2010 FED App. 0236P, 2010 U.S. App. LEXIS 16477 (6th Cir. Ky. 2010 ).

Evidence was sufficient to raise a genuine issue of material fact as to whether the employer, rather than undertaking an objective evaluation to determine whether the employee was able to perform her welding job while pregnant, instead subjectively viewed her pregnancy as rendering her unable to weld; this allowed a reasonable jury to find that the employer’s decision to transfer the employee from her welding position to the tool room was made out of concern for her pregnancy and the well-being of her unborn child rather than because the employee was unable to perform her job as a welder. Such concerns did not justify an adverse employment action. Spees v. James Marine, Inc., 617 F.3d 380, 2010 FED App. 0236P, 2010 U.S. App. LEXIS 16477 (6th Cir. Ky. 2010 ).

Absent any evidence that the employer played a role in having the employee placed on pregnancy bed rest—the event that directly led to her termination—there was no support for the employee’s contention that her pregnancy in and of itself was a motivation behind the employer’s decision to fire her; without the bed rest note from the employee’s doctor, the record supported the conclusion that the employer would have allowed the employee to continue working in the tool room despite being pregnant. The employee was terminated, in other words, not because she was pregnant, but because she voluntarily submitted to the employer the bed rest note advising her not to work for the duration of her pregnancy. Spees v. James Marine, Inc., 617 F.3d 380, 2010 FED App. 0236P, 2010 U.S. App. LEXIS 16477 (6th Cir. Ky. 2010 ).

10. Smoking.

Interpreting the word “condition” in KRS 61.600(3)(d) to include pre-employment smoking behavior would run entirely contrary to the Legislature’s policy in KRS 344.040 prohibiting discrimination against an employee merely because the individual is a smoker. Ky. Ret. Sys. v. Brown, 2007 Ky. App. LEXIS 486 (Ky. Ct. App. Dec. 28, 2007) sub. nom.Sizemore v. Ky. Ret. Sys., 2009 Ky. LEXIS 300 (Ky. May 13, 2009), aff'd, 336 S.W.3d 8, 2011 Ky. LEXIS 34 ( Ky. 2011 ).

11. Reverse Discrimination.

In action by male supervisory employee against employer for reverse discrimination because he was disciplined and demoted in rank and pay for engaging in off-color conduct, while female employee who engaged in more egregious conduct was not, where employee offered no evidence that employer’s proffered, nondiscriminatory justification for demoting him was a pretext for discrimination, summary judgment for employer was proper. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 1994 FED App. 0394P, 1994 U.S. App. LEXIS 33426 (6th Cir. Ky. 1994 ).

Male employee did not establish a case of reverse discrimination where he claimed that he was disciplined and demoted in rank and pay for off-color conduct while a similarly situated female employee was not disciplined at all for engaging in more egregious conduct, since male employee was a supervisor while female employee was not and as a supervisor he acted as the employer’s agent and thus was deemed the alter ego of employer making the employer liable for his unlawful employment practices without regard to whether employer actually know of the individual’s conduct, but employer was only liable for the violations committed by the female nonsupervisory employee if it knew or should have known about it and failed to take remedial action, and thus male and female employee were not similarly situated in all relevant aspects required to establish a case of reverse discrimination. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 1994 FED App. 0394P, 1994 U.S. App. LEXIS 33426 (6th Cir. Ky. 1994 ).

12. Wrongful Discharge.

Complaint alleging that plaintiff was wrongfully discharged from his job because he had fraternized with a female employee failed to state a cause of action under this section. Grzyb v. Evans, 700 S.W.2d 399, 1985 Ky. LEXIS 279 ( Ky. 1985 ).

Presuming that a former employee’s wrongful discharge claim rested on the facts presented for her claim of race discrimination under KRS 344.040 , the District Court found that she was limited to a statutory remedy for her claim, which did not survive summary judgment. Jones v. Kroger, Inc., 2005 U.S. Dist. LEXIS 25566 (E.D. Ky. Oct. 27, 2005), aff'd, 2006 FED App. 0729N, 2006 U.S. App. LEXIS 25156 (6th Cir. Ky. Oct. 5, 2006).

13. — “But for” Test.

The “but for” language used in the trial court’s instructions in a gender-based discharge claim neither stated nor implied “solely because.” In the context used, “but for” did not require a finding of sole cause of plaintiff ’s discharge, but only of substantial factor. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

Under Kentucky procedure the “but for” phrase used to express the causation issue was adequate. The “but for” test does not require that the jury find sex discrimination was the exclusive motive for the employee’s discharge, but only that it was an essential ingredient. In a civil action seeking damages for a discharge motivated by sex discrimination, a “but for” test is a fair interpretation of the substantial factor standard. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

Where the employee’s objection to the trial court regarding jury instructions in a gender-based discharge claim was limited to complaining about the “but for” language, and asking it be rephrased to state “that her female sex was a substantial and motivating factor in her termination,” it was questionable that the objection sufficiently preserved the error because plaintiff did not fully explain what needed to be done to correct the instruction. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

14. Discrimination Not Found.

Pursuant to subsection (6) of KRS 344.030 and subdivision (1) of this section, an employer did not discriminate against an employee who suffered a heart attack and who was considered to have resigned when he was unable to return to work within the 90-day leave period afforded to those who suffer from illness or nonwork related injuries, where said employer allowed a period of up to one year for the return of employees taking leave for maternity related reasons. Harness v. Hartz Mountain Corp., 877 F.2d 1307, 1989 U.S. App. LEXIS 9181 (6th Cir. Ky. 1989 ), cert. denied, 493 U.S. 1024, 110 S. Ct. 728, 107 L. Ed. 2d 747, 1990 U.S. LEXIS 45 (U.S. 1990).

Where an employer claims that the actual reason cannot be recalled, the employer may rely on normal business practices and exemplary reasons consistent with those practices when called upon under the McDonnell Douglas framework of producing a non-discriminatory reason to rebut a plaintiff’s prima facie case of discrimination; thus, where the executive director of a housing authority testified that he could not remember why an assistant housing manager position was readvertised rather than filled by plaintiff employee or one of the other candidates for the job but that readvertising a position was common practice for the housing authority when, for some reason, the personnel director was not comfortable with any of the top candidates recommended by the interview panel, his testimony was sufficient to meet the housing authority’s burden of producing evidence of non-discriminatory reasons why the employee was not hired as an assistant housing manager. Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 2004 Ky. LEXIS 14 ( Ky. 2004 ), modified, 2004 Ky. LEXIS 126 (Ky. May 20, 2004).

District Court properly dismissed a former public employee’s age and gender discrimination claims under the Kentucky Civil Rights Act, as well as her identical gender discrimination claim under Title VII, because none of the younger males whom the employee identified as receiving better treatment was similarly situated in all respects to her. Moreover, the employee failed to offer any direct, circumstantial, or statistical evidence indicating that her position was terminated because of age or gender, as the same number of men and women were laid off during the reduction in force. Gragg v. Somerset Tech. College, 373 F.3d 763, 2004 FED App. 0190P, 2004 U.S. App. LEXIS 12229 (6th Cir. Ky. 2004 ).

District Court properly dismissed a former public employee’s age and gender discrimination claims under the Kentucky Civil Rights Act, as well as her identical gender discrimination claim under Title VII, because defendants offered a legitimate reason for the abolition of the employee’s position — to achieve a uniform staffing pattern throughout the state — and the employee offered no persuasive evidence indicating that the staffing pattern rationale was a pretext for discrimination. The mere fact that defendant chose the employee’s position over a male employee’s position did not prove impermissible discrimination because the male employee worked for a different supervisor, had more seniority in the position, and worked in a more regional (as opposed to school-specific) capacity than the employee and, thus, was not similarly situated. Gragg v. Somerset Tech. College, 373 F.3d 763, 2004 FED App. 0190P, 2004 U.S. App. LEXIS 12229 (6th Cir. Ky. 2004 ).

Although her co-employee’s use of a racial slur was clearly offensive, the District Court held that one racial insult during the seven (7) months that the former employee worked as delicatessen manager for her former employer did not amount to actionable harassment under KRS 344.040(1); also, her allegations did not demonstrate conduct that was severe and pervasive enough to create a hostile work environment due to racial harassment. Even if the employee’s claim of racial harassment set forth actionable harassment, she did not demonstrate that the employer failed to take any corrective or preventive actions upon learning of the incident; thus, the District Court granted the employer’s summary judgment motion dismissing the employee’s hostile work environment claim. Jones v. Kroger, Inc., 2005 U.S. Dist. LEXIS 25566 (E.D. Ky. Oct. 27, 2005), aff'd, 2006 FED App. 0729N, 2006 U.S. App. LEXIS 25156 (6th Cir. Ky. Oct. 5, 2006).

Employee, who alleged that her employer’s failure to promote the employee was discriminatory, established a prima facie case by showing she was an African-American woman who was over the age of 40, and another employee, who was promoted, was a white man under the age of 40; however, the employee failed to show that the employer’s facially valid criteria for not promoting her was a pretextual device. Rowe v. Aig Mktg., 2005 U.S. Dist. LEXIS 32881 (W.D. Ky. Dec. 13, 2005).

Court granted summary judgment to employer on a former employee’s race discrimination claims under 42 USCS § 2000e and KRS 344.040 because the employee did not establish a prima facie case under the McDonnell Douglas burden-shifting analysis, as she did not suffer a materially adverse employment decision; denial of a request to leave early one (1) day per month might have inconvenienced the employee, but it did not affect the terms of her employment. Wills v. Pennyrile Rural Elec. Coop. Corp., 2006 U.S. Dist. LEXIS 72489 (W.D. Ky. Oct. 3, 2006), aff'd, 259 Fed. Appx. 780, 2008 FED App. 0035N, 2008 U.S. App. LEXIS 929 (6th Cir. Ky. 2008 ).

Assistant professor claiming racial discrimination by not being awarded a promotion to full professor could not prove that he was replaced by a person outside of the protected class or that similarly situated non-protected employees were treated more favorably. Two (2) other professors he claimed were similarly situated individuals were promoted under different deans and different chairs of the history department and were promoted based on their performance in different areas. Tyler v. Univ. of Louisville, 2008 U.S. Dist. LEXIS 15077 (W.D. Ky. Feb. 27, 2008).

Dismissal of plaintiffs’ employment discrimination claims was affirmed because neither Title VII of the Civil Rights Act of 1964, 24 U.S.C.S. § 2000e-2(a)(1), nor the Kentucky Civil Rights Act (KCRA), KRS 344.040 protected against discrimination based on sexual orientation and plaintiffs did not allege that their sexual orientation was premised on their religious beliefs or lack thereof, nor did they state whether they accepted or rejected Baptist beliefs. Pedreira v. Ky. Baptist Homes for Children, Inc., 579 F.3d 722, 2009 FED App. 0316P, 2009 U.S. App. LEXIS 19487 (6th Cir. Ky. 2009 ), cert. denied, 563 U.S. 935, 131 S. Ct. 2091, 179 L. Ed. 2d 889, 2011 U.S. LEXIS 3088 (U.S. 2011), cert. denied, 563 U.S. 935, 131 S. Ct. 2143, 179 L. Ed. 2d 889, 2011 U.S. LEXIS 2982 (U.S. 2011).

Employee’s action against an employer alleging the employee’s demotion at work was due to age discrimination and retaliation in violation of KRS 344.040(1) was properly dismissed because the employee failed to present sufficient evidence to rebut the employer’s legitimate, nondiscriminatory reason for demoting the employee on the basis that the employee gave improper advice regarding the classification of invoices. Flock v. Brown-Forman Corp., 344 S.W.3d 111, 2010 Ky. App. LEXIS 114 (Ky. Ct. App. 2010).

Summary judgment was proper in Hispanic employee’s claim of disparate treatment due to her national origin and race in violation of KRS 344.040 based on her supervisor’s use of the words “cultural differences” at a staff meeting. The phrase was open to interpretation and could not meet the definition of direct evidence. Plucinski v. Cmty. Action Council, 2012 Ky. App. LEXIS 60 (Ky. Ct. App.), sub. op., 2012 Ky. App. Unpub. LEXIS 1012 (Ky. Ct. App. Apr. 6, 2012), review denied, ordered not published, 2013 Ky. LEXIS 204 (Ky. Feb. 13, 2013).

In this Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act, and Kentucky Civil Rights Act action, the grant of summary judgment to employer was affirmed because to the extent employee characterized the supervisor’s criticisms as subjective, he did not dispute the specific instances of his perceived deficiencies or the objective evidence such as the 2007 Viewpoint Employee Opinion Survey. Carter v. Toyota Tsusho Am., Inc., 529 Fed. Appx. 601, 2013 FED App. 0620N, 2013 U.S. App. LEXIS 13635 (6th Cir. Ky. 2013 ).

Former university employee failed to show that her position was eliminated in a reduction in force due to her race because she failed to present any evidence indicating that she was singled out due to her race, particularly as there was no evidence of racially discriminatory comments. Lewis-Smith v. W. Ky. Univ., 85 F. Supp. 3d 885, 2015 U.S. Dist. LEXIS 2312 (W.D. Ky. 2015 ).

Former university employee failed to establish objectively hostile or abusive work environment due to race because she described only handful of incidents with supervisor and co-workers during six-year period, and while some comments may have been inappropriate or made employee feel uncomfortable, employee failed to show that these isolated incidents and offhand comments were severe or extremely serious, particularly as statements were not physically threatening or intimidating but were at most mere offensive utterances. Lewis-Smith v. W. Ky. Univ., 85 F. Supp. 3d 885, 2015 U.S. Dist. LEXIS 2312 (W.D. Ky. 2015 ).

Professor's national origin discrimination claim failed because (1) there was no direct evidence that discrimination motivated the professor's discipline, (2) the professor's circumstantial evidence did not disprove the employer's reasons for the professor's discipline for improper conduct, (3) evidence of American-born professors' more favorable discipline differed in scope, subject matter, and quantity from the professor's discipline, and (4) the professor violated probation. Charalambakis v. Asbury Univ., 488 S.W.3d 568, 2016 Ky. LEXIS 187 ( Ky. 2016 ).

District court properly dismissed plaintiff's race, sex, and age discrimination claims under the Kentucky Civil Rights Act were because none of the alleged events, either independently or in combination, constituted an adverse change in the terms and conditions of her employment, and she failed to allege facts from which it could be inferred that the criticism she received related to her race, sex, or age. White v. Coventry Health & Life Ins. Co., 680 Fed. Appx. 410, 2017 FED App. 0126N, 2017 U.S. App. LEXIS 3430 (6th Cir. Ky. 2017 ).

University and its officials were properly granted summary judgment on a failure to promote claim where the employee failed to produce any evidence that she had actually applied for the posted vacancy. Lindsey v. Bd. of Trs. of the Univ. of Ky., 552 S.W.3d 77, 2018 Ky. App. LEXIS 74 (Ky. Ct. App. 2018).

Employee’s disability discrimination claim failed because, while the length of the employee’s incapacitation was disabling, (1) the employee could not do essential job duties, with or without an accommodation, and (2) the employee was not replaced by a non-disabled person or treated less favorably than similarly situated non-disabled persons. Larison v. Home of the Innocents, 551 S.W.3d 36, 2018 Ky. App. LEXIS 135 (Ky. Ct. App. 2018).

15. Waiver of Right of Action.

Where the employee entered into a contract of waiver with the employer whereby he agreed to not file any action for age discrimination in return for the employer’s consideration of severance pay and continued insurance coverage, the employee still had a statutory right to file his civil rights action, although his doing so subjected him to a suit for breach of contract. Curtis v. Belden Electronic Wire & Cable, Div. of Cooper Industries, Inc., 760 S.W.2d 97, 1988 Ky. App. LEXIS 111 (Ky. Ct. App. 1988), overruled in part, Humana, Inc. v. Blose, 247 S.W.3d 892, 2008 Ky. LEXIS 67 ( Ky. 2008 ).

A release without duress, fraud, or bad faith is effective to waive a plaintiff’s right to bring a claim, whether statutory or otherwise. An informed individual may waive a statutory civil right, such as the plaintiff in this case. The release and waiver can be asserted as a defense, rather than a counterclaim. Humana, Inc. v. Blose, 247 S.W.3d 892, 2008 Ky. LEXIS 67 ( Ky. 2008 ).

16. Employer.

Court of Appeals properly sustained the decision to grant summary judgment on the charge of unlawful discrimination because none of the defendants qualified as an employer pursuant to the definition in KRS 344.030(2). Palmer v. International Ass'n of Machinists, 882 S.W.2d 117, 1994 Ky. LEXIS 54 ( Ky. 1994 ).

The International Association of Machinists (IAM), its district lodges, and its local lodges were not one employer as contemplated by subsection (1) of this section and KRS 344.030(2) where the operations of the IAM, the district lodges, and the local lodges were distinct. Palmer v. International Ass'n of Machinists, 882 S.W.2d 117, 1994 Ky. LEXIS 54 ( Ky. 1994 ).

Given that the employee was never employed by the purchaser of the employer’s plant, the employee’s claim that the purchaser unlawfully discharged him on the basis of a disability in violation of the Kentucky Civil Rights Act, KRS 344.010 et seq., failed, and the purchaser was entitled to summary judgment. Spivey v. B.F. Goodrich Co., 246 F. Supp. 2d 714, 2003 U.S. Dist. LEXIS 1742 (W.D. Ky. 2003 ).

Aggregation of joint employees for the purpose of establishing the numerosity requirement under the Kentucky Civil Rights Act is permissible when one joint employer exercises control over the employees of the other joint employer. Sanford v. Main St. Baptist Church Manor, Inc., 327 Fed. Appx. 587, 2009 FED App. 0352N, 2009 U.S. App. LEXIS 11549 (6th Cir. Ky. 2009 ).

Although aggregation of joint employees for the purpose of establishing the numerosity requirement under the Kentucky Civil Rights Act was permissible when one joint employer exercised control over the employees of the other joint employer, such a determination was inappropriate in an employment discrimination suit by a maintenance worker against an apartment and its property manager because the determination required a more detailed analysis of several factors, particularly focusing on the extent of control and supervision over the employee’s scheduling and work performance. Sanford v. Main St. Baptist Church Manor, Inc., 327 Fed. Appx. 587, 2009 FED App. 0352N, 2009 U.S. App. LEXIS 11549 (6th Cir. Ky. 2009 ).

Nurse claimed the doctor’s office discriminated against her on the basis of sex, but she failed to prove that the office qualified as an employer, given that the office had six employees, not eight as required, and the jury determined that two other individuals the nurse argued were employees were not. Smith v. Lewis, 2019 Ky. App. LEXIS 115 (Ky. Ct. App.), sub. op., 2019 Ky. App. Unpub. LEXIS 903 (Ky. Ct. App. July 5, 2019), review denied, ordered not published, 2019 Ky. LEXIS 489 (Ky. Dec. 13, 2019).

17. Employee.

Student, who was a fellowship and stipend recipient and who was dismissed from a graduate program, was not an employee of the university for the purposes of the statute merely because the university required her to fulfill duties not required of other students. Stewart v. Univ. of Louisville, 65 S.W.3d 536, 2001 Ky. App. LEXIS 77 (Ky. Ct. App. 2001).

Retaliation claims asserted against five individual employees were not dismissed because they fit the definition of persons under the Kentucky Civil Rights Act, KRS 344.010(1), and the Act permitted claims against individuals when retaliation was asserted. Banks v. Bosch Rexroth Corp., 2014 U.S. Dist. LEXIS 28043 (E.D. Ky. Mar. 5, 2014).

Circuit court properly dismissed a chaplain's claim of an alleged violation of Kentucky's Civil Rights Act against a racetrack because he was an independent contractor, not an employee, where, while the racetrack required him to perform certain tasks, it did not dictate how he was to conduct his ministry, his duties were not a part of the racetrack's regular business activities, and the chaplain failed to identify any relevant discovery that he was prevented from completing. Powers v. Keeneland Ass'n, 2017 Ky. App. LEXIS 61 (Ky. Ct. App. Mar. 31, 2017), review denied, ordered not published, 2018 Ky. LEXIS 46 (Ky. Feb. 7, 2018).

18. Evidence.

In reaching its holding in Burchett v. Commonwealth, Ky., 98 S.W.3d 492, 2003 Ky. LEXIS 12 (2003), the Kentucky Supreme Court merely reaffirmed the pre-KRE, common-law rule that evidence of a party’s particular “habit” is not admissible to prove that the party acted either negligently or non-negligently in accordance with his or her habit, but Burchett does not exclude all evidence that falls within the Fed. R. Evid. 406 umbrella of admissibility, and it certainly does not preclude evidence of a defendant-employer’s hiring practices and criteria in an employment-discrimination case. Brooks v. Lexington-Fayette Urban County Hous. Auth., 85 Empl. Prac. Dec. (CCH) ¶1841, 132 S.W.3d 790, 2004 Ky. LEXIS 14 ( Ky. 2004 ).

Supervisor’s statements suggesting that an employee was not given a position due to his back problem were not direct evidence of discrimination for purposes of liability under KRS 344.040 in light of the unrebutted evidence that the supervisor was not involved in the decisions on filling the jobs the employee applied for or the decision to terminate the employee. Hallahan v. Courier-Journal, 138 S.W.3d 699, 2004 Ky. App. LEXIS 186 (Ky. Ct. App. 2004).

Employer’s motion for summary judgment against an employee’s claims for damages for alleged violations of KRS 344.040 and KRS 337.423 was properly granted, as: (1) there was not sufficient prima facie evidence to support the constructive discharge, gender discrimination, and retaliation claims; (2) an equal pay claim was time-barred; and (3) a sexual orientation claim was filed in the wrong forum, since the county human rights commission had jurisdiction over that claim. Crockett v. CHA HMO, Inc., 2008 Ky. App. LEXIS 103 (Ky. Ct. App. Apr. 4, 2008), review denied, ordered not published, 2009 Ky. LEXIS 262 (Ky. May 13, 2009).

Former university employee failed to show that her position was eliminated in reduction in force due to her race because she failed to show similarly situated employee was treated more favorably, since comparator was not similarly situated in terms of their jobs and comparator did not receive better treatment since both received extension of time before job termination commenced and no one helped comparator find another job within university. Lewis-Smith v. W. Ky. Univ., 85 F. Supp. 3d 885, 2015 U.S. Dist. LEXIS 2312 (W.D. Ky. 2015 ).

Where former university employee failed to show that her position was eliminated in reduction in force due to her race because she failed to present any evidence indicating that she was singled out due to her race, even if she had made out prima facie case, employee failed to rebut employer's legitimate nondiscriminatory reasons for terminating her due to due to performance issues and personality conflict with her supervisor. Lewis-Smith v. W. Ky. Univ., 85 F. Supp. 3d 885, 2015 U.S. Dist. LEXIS 2312 (W.D. Ky. 2015 ).

Employer was properly granted summary judgment on the employee’s disability discrimination claim under the Kentucky Civil Rights Act because the employee had not created a genuine issue of material fact as to whether the employer’s nondiscriminatory reason for firing him, his unsatisfactory performance, was pretext for intentional discrimination. Bogart v. Univ. of Ky., 766 Fed. Appx. 291, 2019 U.S. App. LEXIS 7850 (6th Cir. Ky. 2019 ).

Plaintiff did present some circumstantial evidence to support her discrimination claim with respect to the advocacy and raises given to other employees during the relevant time period, and thus the trial court did not err in allowing this claim to go to the jury. Louisville Metro Gov't v. Ward, 2020 Ky. App. LEXIS 41 (Ky. Ct. App. Apr. 10, 2020).

19. No Automatic Presumption.

There is no automatic presumption that whenever an employee is replaced by another of a different age that discrimination is the cause. Harker v. Federal Land Bank, 679 S.W.2d 226, 1984 Ky. LEXIS 294 ( Ky. 1984 ).

20. Proof.

Where it was shown that the height requirement for state troopers of 5´6" disqualified 92 percent of all adult women and only 29 percent of adult men, a prima facie showing of discrimination was made, however, where the Department of State Police made a showing that state troopers must rely on the psychological advantage of height they satisfied the burden of proving that the requirement was job-related and since there is only one way to determine height and that is by measuring the applicant, there was no alternative method to determine size, the height requirement was not discriminatory. Kentucky Com. on Human Rights v. Commonwealth, Dep't of Justice, Bureau of State Police, 586 S.W.2d 270, 1979 Ky. App. LEXIS 451 (Ky. Ct. App. 1979).

In order to establish a prima facie case of discrimination a plaintiff need only show that the requirements in question disproportionately exclude a certain class of applicants from employment and once it is shown that the requirement is discriminatory the employer must meet the burden of showing that the requirement has a manifest relationship to the employment in question and if the employer can prove that the requirement is job-related, the plaintiff must show that there are other selection devices, without a similar discriminatory effect, which would likewise serve the employer’s legitimate interest in efficient and trustworthy workmanship. Kentucky Com. on Human Rights v. Commonwealth, Dep't of Justice, Bureau of State Police, 586 S.W.2d 270, 1979 Ky. App. LEXIS 451 (Ky. Ct. App. 1979).

Employees who had been laid off and who alleged age discrimination under this section and sought injunctive relief in form of reinstatement had the burden of proving irreparable harm under collective bargaining agreement that terminated their right of recall and gave them only 48 hours to request severance pay. 686 F. Supp. 1210, 1986 U.S. Dist. LEXIS 20810.

Laid off employees who alleged age discrimination under a collective bargaining agreement which eliminated the right of recall of employees who had been on layoff for more than two years and granted them only 48 hours to request severance pay, who failed to present statistical proof as to the effect of the layoff policies contained in the collective bargaining agreement or proof as to what age computation was of those members who had not been on recall for more than two years did not establish prima facie case of age discrimination. 686 F. Supp. 1210, 1986 U.S. Dist. LEXIS 20810.

An employment discrimination action unfolds in three stages. First, the plaintiff must make a prima facie case of discrimination by offering proof that, 1) she is a member of a protected class, 2) she is qualified for and applied for an available position, 3) she did not receive the job, and 4) the position remained open and the employer sought other applicants. Second, the employer must then articulate a “legitimate nondiscriminatory” reason for its action. Third, once such a reason is given, it is incumbent on the employee to demonstrate that the stated reason is merely a pretext to cover the actual discrimination. Kentucky Ctr. for Arts v. Handley, 827 S.W.2d 697, 1991 Ky. App. LEXIS 132 (Ky. Ct. App. 1991).

In action by male employee claiming reverse discrimination, where plaintiff supervisor and female employee of company were both subject to employers’ policy prohibiting sexual harassment but supervisor alone was subjected to disciplinary action for violating it, since such employees were not similarly situated as supervisor, unlike female employee was a member of management, having authority over several subordinates, and had responsibility for maintaining a respectful, respectable and decorous office, defendant company had reason to treat plaintiff differently than his subordinates in requiring a larger measure of sensitivity and decorum; moreover, since most of the persons involved in the decision to demote plaintiff were also male and there was no hint in the record that company engaged in a regular policy of preferring male supervisors over females, plaintiff failed to present facts from which it might be inferred that any differential treatment afforded him was due to his male gender and thus he failed to support his allegation that employer discriminated against a basically favored group. Pierce v. Commonwealth Life Ins. Co., 825 F. Supp. 783, 1993 U.S. Dist. LEXIS 8924 (E.D. Ky. 1993 ), aff'd, 40 F.3d 796, 1994 FED App. 0394P, 1994 U.S. App. LEXIS 33426 (6th Cir. Ky. 1994 ).

In sex discrimination case while the relative qualifications of the applicant are relevant, a Title VII plaintiff of the Civil Rights Act of 1964, is not required to prove she is “better” qualified than other candidates in order to prevail. Gafford v. General Elec. Co., 997 F.2d 150, 1993 U.S. App. LEXIS 14766 (6th Cir. Ky. 1993 ), abrogated, Hertz Corp. v. Friend, 559 U.S. 77, 130 S. Ct. 1181, 175 L. Ed. 2d 1029, 2010 U.S. LEXIS 1897 (U.S. 2010).

The plaintiff in a disparate treatment case must prove to the factfinder, by a preponderance of the evidence, that each component of her prima facie case has been satisfied, and since the issue of whether a prima facie case has been established is an issue both of law and fact and not a legal issue for the court and not the jury, it was not error per se for the District Court to submit the question of whether a prima facie case had been established to the jury. Gafford v. General Elec. Co., 997 F.2d 150, 1993 U.S. App. LEXIS 14766 (6th Cir. Ky. 1993 ), abrogated, Hertz Corp. v. Friend, 559 U.S. 77, 130 S. Ct. 1181, 175 L. Ed. 2d 1029, 2010 U.S. LEXIS 1897 (U.S. 2010).

An employer’s response after learning of an employee’s harassment may negate liability in a “hostile environment” case, but it is not relevant under the quid pro quo sexual harassment theory, which imposes strict liability on the employer for the conduct of supervisory personnel who exercise significant control over employee’s firing, hiring, or conditions of employment. Gardinella v. General Elec. Co., 833 F. Supp. 617, 1993 U.S. Dist. LEXIS 14553 (W.D. Ky. 1993 ).

In a quid pro quo sexual harassment case, plaintiff met the burden in opposing summary judgment motion by raising genuine issue of material fact by citing his own depositional testimony describing his rejection of his supervisior’s sexual advances and her subsequent retaliation; he does not have to prove that employer discriminated against other male employees because he is not asking the court to infer discrimination from disparate treatment. Gardinella v. General Elec. Co., 833 F. Supp. 617, 1993 U.S. Dist. LEXIS 14553 (W.D. Ky. 1993 ).

In order to establish violation of the Kentucky Civil Rights Act, a plaintiff must prove the same elements as required for a prima facie case of discrimination under Title VII; because plaintiff presented sufficient evidence to establish his Title VII claim, plaintiff also presented enough evidence to establish his state law claim, and the District Court erred in dismissing this claim. Talley v. Bravo Pitino Restaurant, 61 F.3d 1241, 1995 FED App. 0250P, 1995 U.S. App. LEXIS 21998 (6th Cir. Ky. 1995 ).

In employee’s action for disabilities discrimination under the Kentucky Civil Rights Act, KRS 344.010 et seq., the employer was entitled to summary judgment where the employee could not prove that the employer’s proffered reasons for terminating his employment were pretextual; the fact that the employee was on leave when the decision was made, in and of itself, did not support an inference that the employer’s decision to terminate him was related to his alleged disability, and the employee had submitted no evidence that he was treated less favorably than a similarly situated non-disabled employee. Spivey v. B.F. Goodrich Co., 246 F. Supp. 2d 714, 2003 U.S. Dist. LEXIS 1742 (W.D. Ky. 2003 ).

In most failure-to-hire or failure-to-promote cases, the defendant-employer’s asserted reason for not hiring or not promoting the plaintiff-employee is that the person actually hired or promoted was the better candidate, but in the case where the position is left unfilled, this is not a viable route for introducing a non-discriminatory reason for the failure to hire or to promote; however, the reason why the job was not filled by any of the available applicants may provide a non-discriminatory reason. Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 2004 Ky. LEXIS 14 ( Ky. 2004 ), modified, 2004 Ky. LEXIS 126 (Ky. May 20, 2004).

To set forth a prima facie case of hostile work environment, an employee must show that: (1) he is a member of a protected class; (2) he was subjected to unwelcome racial harassment; (3) the harassment was based on race; (4) the harassment had the effect of unreasonably interfering with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the existence of respondeat superior liability. Moore v. Thomas, 2000 U.S. Dist. LEXIS 22606 (W.D. Ky. Feb. 16, 2000).

Where a deputy sheriff asserted a hostile work environment claim in violation of Title VII of the Civil Rights Act of 1964, 42 USCS § 2000e et seq., and KRS Ch. 344, the court granted the sheriff and sheriff’s department’s Fed. R. Civ. P. 56 summary judgment motion on that claim since the deputy did not show either that the department subjected him to a tangible adverse employment action, or that he was subjected to severe or pervasive racially harassing conduct by the sheriff. Moore v. Thomas, 2000 U.S. Dist. LEXIS 22606 (W.D. Ky. Feb. 16, 2000).

Since a deputy sheriff did not establish his retaliation prima facie case under either Title VII of the Civil Rights Act of 1964 or KRS Ch. 344, the court granted the sheriff’s department’s Fed. R. Civ. P. 56 summary judgment motion on that claim. Moore v. Thomas, 2000 U.S. Dist. LEXIS 22606 (W.D. Ky. Feb. 16, 2000).

[Unpublished Opinion] In an employment discrimination case, defendant’s burden to articulate nondiscriminatory reasons for plaintiff’s non-selection is extremely light. Defendant need not persuade the court that it was actually motivated by the proffered reasons. In order to satisfy its burden of articulation it need only introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action. Frazier v. Ford Motor Co., 109 Fed. Appx. 718, 2004 U.S. App. LEXIS 18069 (6th Cir. Ky. 2004 ).

It was error for the trial court to grant summary judgment to the employer in the employee’s claim for violations of KRS 342.197 and KRS 344.040 , because the employee had provided some evidence to rebut the assertion by the employer that it had a valid, non-discriminatory reason for terminating the employee’s position. The employee established that the employer had not raised the issue of the employee’s absenteeism as a problem before the employee had sustained a work-related injury. Bishop v. Manpower, Inc., 211 S.W.3d 71, 2006 Ky. App. LEXIS 376 (Ky. Ct. App. 2006).

21. Procedure.

County attorney was not liable in an individual capacity for alleged discriminatory conduct in discharge of assistant county attorney; assistant can only proceed on her claim under subsection (1) of this section against county attorney in his official capacity and against county officials in their official capacity. Lococo v. Barger, 958 F. Supp. 290, 1997 U.S. Dist. LEXIS 4262 (E.D. Ky. 1997 ), aff'd in part and rev'd in part, 234 F.3d 1268, 2000 U.S. App. LEXIS 35187 (6th Cir. Ky. 2000 ).

Former employee whose employment was terminated by the state agency could not state claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e-2(a)(1) or the Kentucky Civil Rights Act, KRS 344.040(1)(a), for retaliation, hostile work environment, or disparate treatment because the former employee had not presented those claims to the EEOC and, thus, had not exhausted the former employee’s administrative remedies, and the former employee also could not pursue claims for race discrimination or intentional infliction of emotional distress because the former employee failed to state a claim upon which relief could be granted as to those claims. However, the former employee could maintain claims for age and disability discrimination since the former employee had sufficiently pled those claims. Boone v. Commonwealth, 2012 U.S. Dist. LEXIS 56242 (E.D. Ky. Apr. 23, 2012).

Employee’s claims for intentional infliction of emotional distress were dismissed for failure to state a claim because she was prohibited from making a claim for intentional infliction of emotional distress for the same conduct that gave rise to her claims under the Kentucky Civil Rights Act (KCRA), KRS 344.040 . Banks v. Bosch Rexroth Corp., 2014 U.S. Dist. LEXIS 28043 (E.D. Ky. Mar. 5, 2014).

Dismissal of employee's complaint for gender discrimination and disparate treatment was inappropriate because (1) there was no dispute that the employee was a member of a protected class and was qualified for the employee's position as captain of a fire protection district; (2) the employee established that a similarly situated, non-protected employee was treated more favorably than the employee; and (3) without discovery there was insufficient information to determine whether there was a materially adverse change in the terms of employment. Taylor v. Middletown Fire Prot. Dist., 2017 Ky. App. LEXIS 753 (Ky. Ct. App.), sub. op., 2017 Ky. App. Unpub. LEXIS 946 (Ky. Ct. App. Dec. 1, 2017).

22. — Arbitration.

The District Court erred in denying brokerage firm’s motion to compel arbitration of former employee’s civil rights claims based upon the arbitration clause in the securities registration form and relevant New York Stock Exchange Rules. Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 1991 U.S. App. LEXIS 26479 (6th Cir. Ky. 1991 ).

The District Court’s denial of brokerage firm’s motion to arbitrate former account executive’s discrimination claims was in error; nothing inherent in Title VII precludes the enforcement of valid arbitration agreements in circumstances where the Federal Arbitration Act (FAA) is otherwise applicable; while § 1 of the FAA excludes “contracts of employment” from the scope of the FAA, the Supreme Court has squarely held that arbitration agreements contained in a securities registration application such as the one at issue in this case do not constitute contracts for employment; thus, § 1 of the FAA did not exempt former account executive’s discrimination claims from her agreement to arbitrate. Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 1991 U.S. App. LEXIS 26479 (6th Cir. Ky. 1991 ).

23. — Summary Judgment.

Where employee succeeded in stating a prima facie case of racial and sexual discrimination, the trial court erred by granting summary judgment for employer. Kirkwood v. Courier-Journal, 858 S.W.2d 194, 1993 Ky. App. LEXIS 15 (Ky. Ct. App. 1993).

In suit for disability discrimination where there was a question of material fact as to whether employer had satisfied its obligation to accommodate plaintiff by allowing him the opportunity of transferring to another position if he was capable of performing in that position summary judgment was inappropriate. Stacy v. Shoney's Inc., 955 F. Supp. 751, 1997 U.S. Dist. LEXIS 2646 (E.D. Ky. 1997 ), aff'd, 142 F.3d 436, 1998 U.S. App. LEXIS 15816 (6th Cir. Ky. 1998 ).

District Court erred in granting an employer summary judgment on a retaliation claim where the evidence showed that the employee was forced to work harder after filing a complaint with the Equal Employment Opportunity Commission (EEOC), was subjected to a hostile workplace in which the employee’s actions in a drive-off area were scrutinized more closely than the actions of coworkers, and may have been constructively discharged and the adverse employment actions began almost immediately after a supervisor who knew of the employee’s EEOC complaint resumed supervision of the employee. Ford v. GMC, 305 F.3d 545, 2002 FED App. 0336P, 2002 U.S. App. LEXIS 20501 (6th Cir. Ky. 2002 ).

Former employer was granted summary judgment with regard to a former employee’s Title VII of the Civil Rights Act of 1964, 42 USCS § 2000e et seq., and Kentucky Civil Rights Act, KRS ch. 344, employment discrimination claims because the employee failed to establish a prima facie case of disparate treatment, arising out of the employer’s refusal to reclassify her position, and the employer proffered legitimate reasons for its decision, which was that it chose not to reclassify any positions within the employee’s department while the department was being reorganized. O'Bannon v. Univ. of Louisville, 2005 U.S. Dist. LEXIS 16326 (W.D. Ky. Aug. 8, 2005).

Former employee did not present any evidence that (1) she was qualified for the position as a delicatessen manager; or (2) she was replaced by a person outside of her protected class or similarly situated employees because the employee had stated a desire to step down as the delicatessen manager due to the pressures of the job, and her former employer hired an African-American female to replace her as head of the deli department. Thus, the employee did not establish a prima facie case of race discrimination under the Kentucky Civil Rights Act; therefore, the former employer was entitled to summary judgment on that claim. Jones v. Kroger, Inc., 2005 U.S. Dist. LEXIS 25566 (E.D. Ky. Oct. 27, 2005), aff'd, 2006 FED App. 0729N, 2006 U.S. App. LEXIS 25156 (6th Cir. Ky. Oct. 5, 2006).

Defendants were entitled to summary judgment on civil rights claims asserted by deputy sheriff who was discharged after he was convicted of hindering prosecution and official misconduct; although the deputy alleged that he suffered emotional injuries on the job, the section of his complaint devoted to his claim under KRS 344.040(1) and KRS 344.020 set forth confusing allegations and the deputy offered no evidence in support of those allegations. Humphrey v. Scott County Fiscal Court, 2005 U.S. Dist. LEXIS 32362 (E.D. Ky. Dec. 9, 2005), aff'd, 211 Fed. Appx. 390, 2006 FED App. 0861N, 2006 U.S. App. LEXIS 29193 (6th Cir. Ky. 2006 ).

Employer was not entitled to summary judgment in a race discrimination case brought under 42 USCS § 2000e et seq. and KRS 344.040 as the employee presented a prima facie case based on circumstantial evidence of racial discrimination affecting the employment decision and enough evidence to show that she was similarly situated to the person who was granted the position in question, which showed possible pretext for the employer’s proferred reason for hiring the other person. Brewer v. Cedar Lake Lodge, Inc., 243 Fed. Appx. 980, 2007 FED App. 0534N, 2007 U.S. App. LEXIS 18498 (6th Cir. Ky. 2007 ).

Terminated university professor who suffered from breast cancer and failed to obtain a doctorate within five years as required under the professor’s employment contract failed to establish prima facie cases of gender and disability discrimination under the Kentucky Civil Rights Act because the professor did not demonstrate that the professor was qualified for the position without the doctorate; thus, summary judgment was properly granted in favor of the university. Murray v. E. Ky. Univ., 328 S.W.3d 679, 2009 Ky. App. LEXIS 247 (Ky. Ct. App. 2009).

In a reduction-in-force age and national origin discrimination case, defendant employer’s motion for summary judgment was denied as to plaintiff employee’s claim under KRS 344.040(1)(a) of the Kentucky Civil Rights Act (KCRA) because, given the significant different in qualification between plaintiff employee and the two quality engineers who were retained and the use of a derogatory comment directed at plaintiff employee three months before the reduction in force, a reasonable trier of fact could find that plaintiff employee was chosen for the reduction in force for the impermissible reasons of his age and that he was a Mexican-American; as such, plaintiff employee presented a prima facie case for both age and national original discrimination under the KCRA. Chavez v. Dakkota Integrated Sys., LLC, 832 F. Supp. 2d 786, 2011 U.S. Dist. LEXIS 58382 (W.D. Ky. 2011 ).

In an age and national origin discrimination case, defendant employer’s motion for summary judgment was granted as to plaintiff employee’s failure to rehire claim under KRS 344.040(1)(a) of the Kentucky Civil Rights Act (KCRA) because plaintiff employee could not establish the third-prong of a prima facie case in that there was no evidence that an quality engineer positions were reinstated or filled during a recall of some employees; to the extent that plaintiff employee contended that he was discriminated against by the internal hiring of a co-worker as a qualify engineer, plaintiff employee failed to demonstrate that he applied for that position or that defendant employer was obligated to recall him for that position. Chavez v. Dakkota Integrated Sys., LLC, 832 F. Supp. 2d 786, 2011 U.S. Dist. LEXIS 58382 (W.D. Ky. 2011 ).

24. — Directed Verdict.

On a motion for directed verdict, failure to introduce evidence of a legitimate, non-discriminatory reason for its allegedly discriminatory employment practice is fatal to the defendant-employer’s case where the plaintiff has established a prima facie case of discrimination because the defendant-employer has failed to rebut the presumption of discriminatory animus created by the plaintiff’s prima facie case. Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 2004 Ky. LEXIS 14 ( Ky. 2004 ), modified, 2004 Ky. LEXIS 126 (Ky. May 20, 2004).

25. —Jury Instructions.

In sex discrimination case in federal court, although state law controls the substantive content of the jury instructions in diversity actions, federal law governs the standard of review for determining whether a jury instruction is prejudicial; thus since provisions of this section were virtually identical to the corresponding provision of federal law and Kentucky courts have followed federal law in interpreting this section, District Court did not commit reversible error in giving jury the federal three-stage order of proof as opposed to instructing the jury on the ultimate issue of gender discrimination which was the law of the case in Kentucky. Gafford v. General Elec. Co., 997 F.2d 150, 1993 U.S. App. LEXIS 14766 (6th Cir. Ky. 1993 ), abrogated, Hertz Corp. v. Friend, 559 U.S. 77, 130 S. Ct. 1181, 175 L. Ed. 2d 1029, 2010 U.S. LEXIS 1897 (U.S. 2010).

In the employee’s age discrimination action, the trial court erred by instructing the jury to decide whether the employer replaced the employee with a substantially younger person based on circumstantial evidence rather than making that determination itself. The error was not harmless because the employee was justified in assuming that the 12-year age difference between herself and the worker that replaced her was more than enough to satisfy the requirement and the jury could have found in favor of the employer because they did not find that the employee was replaced by a substantially younger person. Norton Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696, 2020 Ky. LEXIS 180 ( Ky. 2020 ).

26. Collective Bargaining Agreement.

Employee’s sex and race discrimination suit against employer was not precluded by her failure to first energetically pursue remedies under her collective bargaining agreement. Kirkwood v. Courier-Journal, 858 S.W.2d 194, 1993 Ky. App. LEXIS 15 (Ky. Ct. App. 1993).

27. Indemnity.

A claim for common law indemnity is available in a civil rights action. Degener v. Hall Contr. Corp., 27 S.W.3d 775, 2000 Ky. LEXIS 63 ( Ky. 2000 ).

28. Damages.

The Kentucky Civil Rights Statute does not authorize punitive damages. Steinhoff v. Upriver Restaurant Joint Venture, 117 F. Supp. 2d 598, 2000 U.S. Dist. LEXIS 15413 (E.D. Ky. 2000 ).

29. Ministerial Exception.

Employee’s discrimination claim against an employer under KRS 344.040 was barred because (1) the employer was a religious institution, and (2) it was determined that the employee was a minister. Kirby v. Lexington Theol. Seminary, 426 S.W.3d 597, 2014 Ky. LEXIS 161 ( Ky. 2014 ).

30. Retaliation

Where a former employee filed an age discrimination suit based on a recording employee made by bringing digital MP3 music players to work and the employer refused to rehire the employee due to the violation of a policy regarding electronic recording devices, the employee's retaliation claims survived because the employee established the necessary causal connection since, inter alia, the 15-month interval could be consistent with a retaliatory motive, and there was evidence that a co-worker brought a smart phone to the plant and was never disciplined. Sharp v. Aker Plant Servs. Group, 600 Fed. Appx. 337, 2015 FED App. 0040N, 2015 U.S. App. LEXIS 730 (6th Cir. Ky. 2015 ).

Applied in

Benningfield v. Fields, 584 S.W.3d 731, 2019 Ky. LEXIS 371 ( Ky. 2019 ).

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. Ky. 1972 ); Kentucky Com. on Human Rights v. Commonwealth, Dep't for Human Resources, Hazelwood Hospital, 564 S.W.2d 38, 1978 Ky. App. LEXIS 496 (Ky. Ct. App. 1978); Simpson v. Whirlpool Corp., 604 F.2d 997, 1979 U.S. App. LEXIS 12157 (6th Cir. Ky. 1979 ); Kentucky Com. on Human Rights v. International Brotherhood of Electrical Workers, 578 S.W.2d 247, 1979 Ky. LEXIS 231 ( Ky. 1979 ); Kentucky Com. on Human Rights v. Fraser, 625 S.W.2d 852, 1981 Ky. LEXIS 311 ( Ky. 1981 ); Ellis v. Logan Co., 543 F. Supp. 586, 1982 U.S. Dist. LEXIS 13732 (W.D. Ky. 1982 ); Pyro Mining Co. v. Kentucky Com. on Human Rights, 678 S.W.2d 393, 1984 Ky. LEXIS 290 ( Ky. 1984 ); Maurya v. Peabody Coal Co., 823 F.2d 933, 1987 U.S. App. LEXIS 8343 (6th Cir. Ky. 1987 ); Irvin v. Airco Carbide, 837 F.2d 724, 1987 U.S. App. LEXIS 17452 (6th Cir. Ky. 1987 ); Clark Equipment Co. v. Bowman, 762 S.W.2d 417, 1988 Ky. App. LEXIS 184 (Ky. Ct. App. 1988); Arney v. Campbell, 856 F. Supp. 1203, 1994 U.S. Dist. LEXIS 9120 (W.D. Ky. 1994 ); Buntin v. Breathitt County Bd. of Educ., 134 F.3d 796, 1998 FED App. 25P, 1998 U.S. App. LEXIS 786 (6th Cir. 1998); Clark v. Alcan Aluminum Corp., 41 Fed. Appx. 767, 2002 U.S. App. LEXIS 14938 (6th Cir. Ky. 2002 ); Buckley v. Wilson, 177 S.W.3d 778, 2005 Ky. LEXIS 345 ( Ky. 2005 ); Blose v. Humana, Inc., 2006 Ky. App. LEXIS 247 (Ky. Ct. App. July 28, 2006); Owen v. Univ. of Ky., 486 S.W.3d 266, 2016 Ky. LEXIS 174 ( Ky. 2016 ).

Notes to Unpublished Decisions

Analysis

  1. Age Discrimination.
  2. Sexual Harassment.
  3. Disability.
  4. Pregnancy.
  5. Discrimination Not Found.
  6. Procedure.
  7. — Summary Judgment.
  8. Collective Bargaining Agreement.

14. Discrimination Not Found.

16. Employer.

20. Proof.

30. Retaliation.

31. Miscellaneous

1. Age Discrimination.

Unpublished decision: District court properly granted summary judgment in favor of an employer in a former employee’s age discrimination action under KRS 344.040(1); the 57-year-old employee who had worked for the employer for 28 years did not establish a prima facie case of age discrimination because the redistribution of the employee’s prior duties among the existing district managers did not constitute “replacement” of the employee by a significantly younger person. Further, there was no evidence that the restructuring was a temporary ruse designed to defeat the employee’s prima facie case. Harmon v. Earthgrains Baking Cos., 2009 FED App. 0118N, 2009 U.S. App. LEXIS 2996 (6th Cir. Ky. Feb. 11, 2009).

Unpublished decision: Because no similarly-situated employee was treated more favorably than plaintiff employee, and because there was no evidence that defendant employer did not have a good-faith belief in its nondiscriminatory reason for termination, plaintiff failed to create a genuine issue of fact regarding pretext, and her age discrimination claim under KRS 344.040 was properly dismissed on summary judgment. Rutherford v. Britthaven, Inc., 452 Fed. Appx. 667, 2011 FED App. 0878N, 2011 U.S. App. LEXIS 25806 (6th Cir. Ky. 2011 ).

Unpublished decision: Television reporter had not identified genuine issues of material fact sufficient to support a claim of age discrimination against his employer under the Age Discrimination in Employment Act, 29 U.S.C.S. § 621 et seq., and the Kentucky Civil Rights Act, KRS 344.040 . He could not establish a prima facie case of age discrimination because he could not demonstrate either (1) that he was replaced by a substantially younger employee, or (2) that he was treated differently than similarly situated but younger employees. Sander v. Gray TV Group, Inc., 478 Fed. Appx. 256, 2012 FED App. 0428N, 2012 U.S. App. LEXIS 7868 (6th Cir. Ky. 2012 ).

Unpublished decision: Where an employee, a nurse, was fired for making a charting error, the district court properly concluded that three younger employees who were not fired for making charting errors were not similarly situated to the employee because the charting error made by the employee was the most serious error that her supervisor had ever seen and was the only incident she ever had to report to the state board of nursing. Laws v. HealthSouth N. Ky. Rehab. Hosp. Ltd. P'ship, 508 Fed. Appx. 404, 2012 FED App. 1275N, 2012 U.S. App. LEXIS 25515 (6th Cir. Ky. 2012 ).

Unpublished decision: In age discrimination case in which former employee appealed district court’s entry of summary judgment in favor of former employer, his prima facie case was established as it was undisputed that he was over 40 years old at time of his termination, he was terminated from his job, he was replaced by a younger person, and, based on previous employment reviews, there was sufficient evidence that he was qualified for position. Baker v. Becton, Dickinson & Co., 532 Fed. Appx. 601, 2013 FED App. 0673N, 2013 U.S. App. LEXIS 15072 (6th Cir. Ky. 2013 ).

Unpublished decision: In age discrimination case, district court improperly held that even if employee satisfied his prima facie burden, employer responded with legitimate, non-discriminatory reason by noting various sales losses that employee sustained over the last year. Employee’s arguments about his supervisor’s comments to him could not be easily dismissed; those comments were clearly made in relation to employee’s age. Baker v. Becton, Dickinson & Co., 532 Fed. Appx. 601, 2013 FED App. 0673N, 2013 U.S. App. LEXIS 15072 (6th Cir. Ky. 2013 ).

2. Sexual Harassment.

Unpublished decision: There was insufficient admissible evidence in the record to support the employee’s claim that she was the victim of workplace harassment because of her gender; the fact that the harasser elbowed the employee in the breast rather than another part of the body was not sufficient to establish a sex-based animus. Pusey v. UPS, 393 Fed. Appx. 366, 2010 FED App. 0576N, 2010 U.S. App. LEXIS 18353 (6th Cir. Ky. 2010 ).

3. Disability.

Unpublished decision: Where a former employee alleged discrimination based on age and disability under the Age Discrimination in Employment Act, 29 U.S.C.S. § 623, the Americans with Disabilities Act, 42 U.S.C.S. § 12112 et seq., and the Kentucky Civil Rights Act, KRS 344.040 , summary judgment was properly granted to his employer as he was not replaced by an individual who was under age 40 and he was not disabled as was defined under 42 U.S.C.S. § 12102(2). There was no evidence of discriminatory intent because, while he claimed that the “smoking guns” were comments that were made by his supervisors, those supervisors were not part of the decision-making process that resulted in the change of his status. Fricke v. E.I. Dupont Co., 219 Fed. Appx. 384, 2007 FED App. 0079N, 2007 U.S. App. LEXIS 2425 (6th Cir. Ky. 2007 ).

Unpublished decision: Where an employee sustained a wrist injury, remained on leave for 24 months, and was terminated, the employee’s disability discrimination claim failed because the employee did not show that the wrist injury substantially limited a major life function, and evidence of the employee’s lifting restrictions, standing alone, was insufficient to qualify as a “disability.” Scott v. G & J Pepsi-Cola Bottlers, Inc., 391 Fed. Appx. 475, 2010 FED App. 0505N, 2010 U.S. App. LEXIS 16904 (6th Cir. Ky. 2010 ).

4. Pregnancy.

Unpublished decision: Summary judgment was granted to an employer in a case alleging pregnancy discrimination under 42 U.S.C.S. § 2000e(k) and KRS 344.040 because, although an employee established a prima facie case, she was unable to show that the employer’s reason for termination based on temporary job restrictions was pretextual; moreover, there was no evidence of direct discrimination because a statement regarding the risk of having the employee work with a total lifting restriction was ambiguous. Bergman v. Baptist Healthcare Sys., 167 Fed. Appx. 441, 2006 FED App. 0052N, 2006 U.S. App. LEXIS 1426 (6th Cir. Ky. 2006 ).

5. Discrimination Not Found.

Unpublished decision: African-American employee failed to establish a prima facie case of racial discrimination based on a hostile work environment because (1) isolated occurrences over 26 years could not be considered pervasive or severe enough to create a hostile work environment that affected the employee’s work, and (2) with one exception, the employer acted promptly and decisively to end the conduct when it became aware of discrete instances of harassment. Scott v. G & J Pepsi-Cola Bottlers, Inc., 391 Fed. Appx. 475, 2010 FED App. 0505N, 2010 U.S. App. LEXIS 16904 (6th Cir. Ky. 2010 ).

Unpublished decision: A reasonable person would not find that merely being directed to refrain from discussing God during work hours created a hostile or abusive work environment. Such a request was neither intimidating, nor derisive, nor insulting; accordingly, plaintiff could not survive summary judgment on her hostile work environment claim. Mitchell v. Univ. Med. Ctr., Inc., 2011 U.S. App. LEXIS 26546 (6th Cir. Ky. Aug. 10, 2011).

Unpublished decision: Nurses’s claims of religious accommodation and religious discrimination failed because a hospital’s direction to her—refrain from discussing during work hours the calculations God showed her—was not a form of discipline forbidden by Title VII or the Kentucky Civil Rights Act. It was not a materially adverse employment action. Mitchell v. Univ. Med. Ctr., Inc., 2011 U.S. App. LEXIS 26546 (6th Cir. Ky. Aug. 10, 2011).

Unpublished decision: Employee’s discrimination claims failed because (1) regarding one position, the person promoted was clearly more qualified than the employee, and (2) regarding a second position, although the two people who interviewed the employee had different reasons for not promoting the employee, the employee did not show that the proffered reasons, which included lying to a manager about using the wrong grease on a part, were a pretext for discrimination based on the employee’s race or national origin since the employee did not show that any of the reasons were untrue. Kariuki v. Comair, Inc., 483 Fed. Appx. 136, 2012 FED App. 0551N, 2012 U.S. App. LEXIS 10959 (6th Cir. Ky. 2012 ).

6. Procedure.

Unpublished decision: Where an employee was terminated for keeping reimbursement checks from the sale of old pallets, even though plant managers allegedly had authorized this practice for almost 30 years, the age discrimination claim failed because the employee's bare allegation that the employee was terminated due to the employee's age could not form the basis of the employee's complaint, the employee provided no facts regarding alleged comparators, and the employee could not show discrimination based on the doling out of early retirement benefits and buyout packages. Downs v. Bel Brands USA, Inc., 613 Fed. Appx. 515, 2015 FED App. 0395N, 2015 U.S. App. LEXIS 9344 (6th Cir. Ky. 2015 ).

7. — Summary Judgment.

Unpublished decision: Although a former employee had presented a prima facie case of discrimination, arising out of her former employer’s reclassification of her dispatcher position, the employer was properly granted summary judgment as to the employee’s discrimination claims, brought pursuant to the Kentucky Civil Rights Act, KRS 344.040 , because the employer had presented legitimate, nondiscriminatory reasons for restructuring the dispatcher position and the employee had failed to present any evidence showing that those reasons were a pretext for discrimination; the McDonnell Douglas burden shifting approach applied to claims brought under § 344.040 , and after the employer presented legitimate reasons for its conduct, the burden shifted back to the employee to demonstrate that a reasonable jury could conclude that the proffered business decision was merely a pretext for unlawful discrimination. The employer had explained that it had restructured the position because it was not sufficient for dispatchers to merely relay information to field representatives, as the employee had done, but they also needed to be able to analyze energy service interruption problems and to direct how they could be repaired in the most efficient way possible. Thomas v. Owen Elec. Coop., Inc., 121 Fed. Appx. 598, 2005 U.S. App. LEXIS 1071 (6th Cir. Ky. 2005 ).

Unpublished decision: Former employer properly was awarded summary judgment in a former employee’s action for disability discrimination under the Kentucky Civil Rights Act, KRS§ 344.010-344.045, because the employee failed to establish a prima facie case of disability discrimination. “Merchandising,” which referred to maintaining prescribed standards for the proper appearance and organization of the employer’s stores, was an essential function of the employee’s job as store manager, and the employee failed to present sufficient evidence to show that he could fulfill his merchandising duties with or without a reasonable accommodation. Lankford v. Radioshack Corp., 232 Fed. Appx. 503, 2007 FED App. 0348N, 2007 U.S. App. LEXIS 12539 (6th Cir. Ky. 2007 ).

Unpublished decision: There was insufficient admissible evidence in the record to support the employee’s claim that she was the victim of workplace harassment because of her race; the harasser’s statement that “it was a good day to be a black man” was a mere statement of racial pride provided no insight into whether an individual held any animus against those of another race, and although the employee argued that the harasser was mimicking animals by grunting in the employee’s vicinity, thereby drawing upon early twentieth-century stereotypes that portrayed African-Americans as predatory animals who preyed upon white women, nothing in the record suggested that the harasser’s grunting bore any resemblance to that of an animal. Pusey v. UPS, 393 Fed. Appx. 366, 2010 FED App. 0576N, 2010 U.S. App. LEXIS 18353 (6th Cir. Ky. 2010 ).

8. Collective Bargaining Agreement.

Unpublished decision: Plaintiff employees’ Kentucky Civil Rights Act, KRS 344.040(1), age discrimination case, analyzed under the similar Age Discrimination in Employment Act of 1967, 29 U.S.C.S. § 623 et seq., failed where the collective bargaining agreement, negotiated in anticipation of defendant employer buying the business, provided that those retiring before the buy-out would be rehired with less pay because the reduction was claimed as necessary to buy the unprofitable company and to prevent an across the board reduction in pay for all employees and nothing showed that stated reason was false. Acree v. Tyson Bearing Co., 128 Fed. Appx. 419, 2005 U.S. App. LEXIS 2600 (6th Cir. Ky.), cert. denied, 546 U.S. 875, 126 S. Ct. 386, 163 L. Ed. 2d 171, 2005 U.S. LEXIS 5812 (U.S. 2005).

14. Discrimination Not Found.

Unpublished decision: Where an employee was terminated from a bank branch manager position allegedly because the branch failed to meet certain production goals and the employee had been failing to properly document business sales calls or coaching of branch employees, the age discrimination and gender discrimination claims failed because the employee did not show pretext since, inter alia, the employee did not show that another manager's conduct was substantially the same as the employee's failure to document the employee's business sales calls. Riley v. PNC Bank, N.A., 602 Fed. Appx. 316, 2015 FED App. 0259N, 2015 U.S. App. LEXIS 5900 (6th Cir. Ky. 2015 ).

Unpublished decision: Employee's request for leave as an accommodation was not reasonable because it would have required the employer to forgive the performance error committed before the request and ignore the error committed shortly after the request, neither of which is required by law. Parks v. UPS Supply Chain Solutions, Inc., 607 Fed. Appx. 508, 2015 FED App. 0290N, 2015 U.S. App. LEXIS 6382 (6th Cir. Ky. 2015 ).

Unpublished decision: Grant of summary judgment to the employer was affirmed because the employer articulated two interrelated legitimate, non-discriminatory reasons for the employee's termination, operating under a growing deficit and failing to establish a sustainable business model--and the employee failed to show pretext. 2015 FED App. 0798N, 2015 U.S. App. LEXIS 21315.

16. Employer.

Unpublished decision: A district court properly dismissed an employee's age and sex discrimination claims as to her manager because individual employees could not be held liable under the Kentucky Civil Rights Act. Roof v. Bel Brands USA, Inc., 641 Fed. Appx. 492, 2016 FED App. 0084N, 2016 U.S. App. LEXIS 2299 (6th Cir. Ky. 2016 ).

20. Proof.

Unpublished decision: In this Kentucky Civil Rights Act action, because the record did not allow the instant court to determine whether the employee's status as a management employee was a relevant aspect of his employment for the purpose of limiting the pool of possible comparators, the district court erred by discounting the possibility that a Caucasian employee was a similarly situated employee and proper comparator. James v. Hampton, 2015 FED App. 0159N, 2015 U.S. App. LEXIS 3464 (Mar. 2, 2015).

30. Retaliation.

Unpublished decision: In an employment discrimination case in which an employee appealed a district court's dismissal of her retaliation claim, her statements to her manager were not protected activity as that did not amount to opposition to an unlawful employment practice by the manager. Roof v. Bel Brands USA, Inc., 641 Fed. Appx. 492, 2016 FED App. 0084N, 2016 U.S. App. LEXIS 2299 (6th Cir. Ky. 2016 ).

31. Miscellaneous

Unpublished decision: Where an employee appealed a district court's dismissal of her state-law sex discrimination claims, while there was no doubt that her complaint was not the most artfully drafted pleading, it was sufficient on its face under the Iqbal decision and the Twombly decision, especially when viewed in a light most favorable to the employee. Roof v. Bel Brands USA, Inc., 641 Fed. Appx. 492, 2016 FED App. 0084N, 2016 U.S. App. LEXIS 2299 (6th Cir. Ky. 2016 ).

Unpublished decision: In a state-law employment discrimination case in which an employee appealed a district court's dismissal of her negligent hiring, retention, and supervision, causing her emotional distress, those claims were pre-empted by the exclusivity provision of the Kentucky Workers' Compensation Act. Roof v. Bel Brands USA, Inc., 641 Fed. Appx. 492, 2016 FED App. 0084N, 2016 U.S. App. LEXIS 2299 (6th Cir. Ky. 2016 ).

Opinions of Attorney General.

Hoge, Sexual Harassment: The Development of the “Reasonable Woman” Standard, Vol. 56, No. 4, Fall 1992 Ky. Bench & B. 22.

Cities are employers subject to provisions of this chapter and may not discriminate for employment purposes, by statute, ordinance or regulation, against persons between the ages of 40 and 65. OAG 74-138 .

As there is no maximum statutory age limit for a chief of police of a city of the fourth class, the fact that such a chief of police is 55 years of age is of no significance in determining his eligibility to continue to serve out the two year term for which he was appointed, although he is subject to removal at any time for good cause by the city legislative body pursuant to KRS 95.720 (repealed). OAG 74-917 .

This section, KRS 45.550 to 45.560 , Kentucky Executive Orders 77-508 and 77-831, P.L. 92-256, and 23 CFR Part 633, Subpart A, Appendix A are all in pari materia. OAG 79-404 .

Administrative Regulation 104 KAR 1:040 relating to job discrimination advertising under the Civil Rights Act permits an employer to make application to the commission on human rights for a “bona fide occupational qualification” exemption which could, if approved, reduce statutory maximum age protection. OAG 82-147 .

Maximum age of 45 in KRS 90.330 must give way to the requirements of the Kentucky Civil Rights Act, KRS Ch. 344, and particularly this section, which prohibits any discrimination between the ages of 40 and 70. OAG 82-147 .

Although a city ordinance provided that newly hired firefighters had to be between the ages of 21 and 37, the Kentucky Civil Rights Act (KRS Chapter 344) would preclude such a hiring practice. OAG 84-239 .

The age limitation requirement in KRS 95.440 prevails over the age limitation found in this section since the former statute was amended subsequently to this section; therefore, the 1986 amendment to the Federal Age Discrimination Act which excludes members of the police and fire departments activates the age limitation imposed by KRS 95.440 on police and firefighters in cities of the second class. OAG 87-18 .

Research References and Practice Aids

Kentucky Bench & Bar.

Vish, Age Discrimination Act: An Overview, Vol. 41, No. 1, Jan. 1977 Ky. Bench & B. 13.

Hoge, Sexual Harassment: The Development of the “Reasonable Woman” Standard, Vol. 56, No. 4, Fall 1992 Ky. Bench & B. 22.

Schoening & Guilfoyle, The Legal Implications of a Reduction in Force, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 12.

Kentucky Law Journal.

Leathers and Mooney, Civil Procedure, 74 Ky. L.J. 355 (1985-86).

Northern Kentucky Law Review.

Hawkins and MacGillivray, A Summary of Kentucky Employment Law Decisions, 21 N. Ky. L. Rev. 357 (1994).

Notes, Nelson Steel Corp. v. McDaniel: DiscriminationAgainst Employees Who Have Filed Workers’ Compensation Claims Against PreviousEmployers, 23 N. Ky. L. Rev. 435 (1996).

Bales and Korb, A Survey of Kentucky Employment Compensation Law: A Look At Employment Discrimination Claims Brought Under the Kentucky Civil Rights Act, 30 N. Ky. L. Rev. 71 (2003).

Kentucky Survey Issue: Article: Off-Duty Privacy: How Far Can Employers Go?, 37 N. Ky. L. Rev. 287 (2010).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Appellant’s Brief, Form 101.25.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Employment Discrimination, § 284.00.

Kentucky Instructions To Juries (Civil), 5th Ed., Employment, §§ 45.01 — 45.06.

ALR

Fair employment statutes designed to eliminate racial, religious, or national origin discrimination in private employment. 44 A.L.R.2d 1138, 37 A.L.R.5th 349.

Construction and operation of “equal opportunity clause” requiring pledge against racial discrimination in hiring under construction contract. 44 A.L.R.3d 1283.

What constitutes “business necessity” justifying employment practice prima facie discriminatory under Title VII of Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.). 36 A.L.R. Fed. 9, 91 A.L.R. Fed. 178.

Proving that discharge was because of age, for purposes of Age Discrimination in Employment Act (29 USCS §§ 621 et seq.). 58 A.L.R. Fed. 94.

Job discrimination against unwed mothers or unwed pregnant women as proscribed under Pregnancy Discrimination Act (42 USCS § 2000e (k). 91 A.L.R. Fed. 178.

344.045. Employment practices prohibited.

In effectuating the purposes of this chapter no employer, as defined in KRS 344.030 , shall establish any employment practices affecting the terms, conditions, and privileges of employment in derogation of an established seniority system or which contravenes an existing collective bargaining agreement.

History. Enact. Acts 1976, ch. 285, § 2.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Employment Discrimination, § 284.00.

344.050. Discrimination by employment agencies.

  1. It is an unlawful practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, an individual because of his race, color, religion, national origin, sex, or age forty (40) and over, or because the person is a qualified individual with a disability, or to classify or refer for employment an individual on the basis of disability, race, color, religion, national origin, sex, or age between forty (40) and seventy (70).
  2. It is an unlawful practice for a licensing agency to refuse to license, or to bar or terminate from licensing an individual because of race, color, religion, national origin, sex, or age forty (40) and over, or because the person is a qualified individual with a disability.

History. Enact. Acts 1966, ch. 2, Art. 3, § 303; 1972, ch. 255, § 4; 1980, ch. 245, § 5, effective July 15, 1980; 1992, ch. 282, § 6, effective July 14, 1992; 1994, ch. 378, § 5, effective July 15, 1994.

NOTES TO DECISIONS

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Employment Discrimination, § 284.00.

344.060. Discrimination by labor organizations.

It is an unlawful practice for a labor organization:

  1. To exclude or to expel from its membership, or otherwise to discriminate against, a member or applicant for membership because of race, color, religion, national origin, sex, or age forty (40) and over, or because the person is a qualified individual with a disability.
  2. To limit, segregate, or classify its membership, or to classify or fail to refuse to refer for employment an individual, in any way which would deprive or tend to deprive an individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect the status as an employee or as an applicant for employment, because of race, color, religion, national origin, sex, or age forty (40) and over, or because the person is a qualified individual with a disability.
  3. To cause or attempt to cause an employer to discriminate against an individual in violation of this section.

History. Enact. Acts 1966, ch. 2, Art. 3, § 304; 1972, ch. 255, § 5; 1980, ch. 245, § 6, effective July 15, 1980; 1992, ch. 282, § 7, effective July 14, 1992; 1994, ch. 378, § 6, effective July 15, 1994.

NOTES TO DECISIONS

  1. Burden of Proof.
  2. Preemption.
1. Burden of Proof.

While the district court improperly granted summary judgment in favor of a union because two union members had not established their prima facie case, summary judgment in the union’s favor in regards to the member’s Kentucky Civil Rights Act, KRS 344.010 et seq., claims was still proper since the members failed to show that the union’s articulated reasons for not appointing the members to the positions of international representative was pretextual. Frazier v. Ford Motor Co., 109 Fed. Appx. 718, 2004 U.S. App. LEXIS 18069 (6th Cir. Ky. 2004 ).

2. Preemption.

Since a union member’s Kentucky Civil Rights Act, KRS 344.010 et seq., claims were tantamount to claims that the union breached its duty of fair representation, those claims were preempted by the Labor Management Relations Act, 29 USCS § 185. Frazier v. Ford Motor Co., 109 Fed. Appx. 718, 2004 U.S. App. LEXIS 18069 (6th Cir. Ky. 2004 ).

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973); Kentucky Com. on Human Rights v. International Brotherhood of Electrical Workers, 578 S.W.2d 247, 1979 Ky. LEXIS 231 ( Ky. 1979 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Employment Discrimination, § 284.00.

ALR

Right of labor union to exclude applicants for membership and remedies of applicant so excluded. 33 A.L.R.3d 1305.

344.070. Discrimination in apprenticeship or training.

It is an unlawful practice for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against an individual because of race, color, religion, national origin, sex, or age forty (40) and over, or because the person is a qualified individual with a disability in admission to or employment in, any program established to provide apprenticeship or other training.

History. Enact. Acts 1966, ch. 2, Art. 3, § 305; 1972, ch. 255, § 6; 1992, ch. 282, § 8, effective July 14, 1992; 1994, ch. 378, § 7, effective July 15, 1994.

NOTES TO DECISIONS

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973).

Opinions of Attorney General.

Due to inconsistencies between this section as amended in 1972 by chapter 255, section 6 and federal law as to apprenticeship programs it would seem that the state Human Rights Commission in determining whether there is discrimination because of age in apprenticeship programs would need to look at the type of program, its length, and whether the employer’s refusal to accept an older person in such a program was reasonably justified by the nature of the program and the results to be achieved. OAG 72-493 .

344.080. Regulation of advertisement for employment.

It is an unlawful practice for an employer, labor organization, licensing agency, or employment agency to print or publish or cause to be printed or published a notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by the employment or licensing agency, indicating any preference, limitation, specification, or discrimination, based on race, color, religion, national origin, sex, or age forty (40) and over, or because the person is a qualified individual with a disability, except that such a notice or advertisement may indicate a preference, limitation, or specification based on religion, national origin, sex, or age forty (40) and over, or because the person is a qualified individual with a disability, when religion, national origin, sex, or age forty (40) and over, or because the person is a qualified individual with a disability, is a bona fide occupational qualification for employment.

History. Enact. Acts 1966, ch. 2, Art. 3, § 306; 1972, ch. 255, § 7; 1980, ch. 245, § 7, effective July 15, 1980; 1992, ch. 282, § 9, effective July 14, 1992; 1994, ch. 378, § 8, effective July 15, 1994.

NOTES TO DECISIONS

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, Mid-Continent Spring Co. v. Mitchell, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973); Clark v. Alcan Aluminum Corp., 41 Fed. Appx. 767, 2002 U.S. App. LEXIS 14938 (6th Cir. 2002).

Research References and Practice Aids

Northern Kentucky Law Review.

Bales and Korb, A Survey of Kentucky Employment Compensation Law: A Look At Employment Discrimination Claims Brought Under the Kentucky Civil Rights Act, 30 N. Ky. L. Rev. 71 (2003).

ALR

Identification of job seeker by race, religion, national origin, sex, or age, in “situation wanted” employment advertising as violation of state civil rights laws. 99 A.L.R.3d 154.

Validity, construction, and application of § 804(c) of Civil Rights Act of 1968 (Fair Housing Act) (42 USCS § 3604(c)) prohibiting discriminatory notice, statement, or advertisement with respect to sale or rental of dwelling. 22 A.L.R. Fed. 359.

344.090. Religion or national origin, employment discrimination not unlawful in certain cases.

Notwithstanding any other provisions of KRS 344.030 to 344.110 , it is not an unlawful practice for:

  1. An employer to hire and employ employees, or an employment agency to classify, or refer for employment an individual, for a labor organization to classify its membership or to classify or refer for employment an individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ an individual in any such program, on the basis of his religion or national origin in those certain instances where religion or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.
  2. A religious corporation, association, or society to employ an individual on the basis of his religion to perform work connected with the carrying on by such corporation, association, or society of its religious activity.
  3. A school, college, university, or other educational institution to hire and employ employees of a particular religion if the school, college, university, or other educational institution is, in whole or substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of the school, college, university, or other educational institution is directed toward the propagation of a particular religion and the choice of employees is calculated by such organization to promote the religious principles for which it is established or maintained.

History. Enact. Acts 1966, ch. 2, Art. 3, § 308.

344.100. Discrimination in wages or conditions not unlawful when made on basis other than race, color, religion, national origin, sex, or age forty and over, or because person is a qualified individual with a disability.

Notwithstanding any other provision of this chapter, it is not an unlawful practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, if the differences are not the result of an intention to discriminate because of race, color, religion, national origin, sex, or age forty (40) and over, or because the person is a qualified individual with a disability, nor is it an unlawful practice for an employer to give and to act upon the results of any professionally developed ability test provided that the test, its administration or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, national origin, sex, or age forty (40) and over, or because the person is a qualified individual with a disability.

History. Enact. Acts 1966, ch. 2, Art. 3, § 309; 1972, ch. 255, § 8; 1980, ch. 245, § 8, effective July 15, 1980; 1992, ch. 282, § 10, effective July 14, 1992; 1994, ch. 378, § 9, effective July 15, 1994.

NOTES TO DECISIONS

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973).

Notes to Unpublished Decisions

1. Collective bargaining agreement.

Unpublished decision: Plaintiff employees’ Kentucky Civil Rights Act, KRS 344.040(1), 344.100 , age discrimination case, analyzed under the similar Age Discrimination in Employment Act of 1967, 29 U.S.C.S. § 623 et seq., failed where the collective bargaining agreement, negotiated in anticipation of defendant employer buying the business, provided that those retiring before the buy-out would be rehired with less pay because the reduction was claimed as necessary to buy the unprofitable company and to prevent an across the board reduction in pay for all employees and nothing showed that stated reason was false. Acree v. Tyson Bearing Co., 128 Fed. Appx. 419, 2005 U.S. App. LEXIS 2600 (6th Cir. Ky.), cert. denied, 546 U.S. 875, 126 S. Ct. 386, 163 L. Ed. 2d 171, 2005 U.S. LEXIS 5812 (U.S. 2005).

Research References and Practice Aids

Kentucky Bench & Bar.

Schoening & Guilfoyle, The Legal Implications of a Reduction in Force, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 12.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Employment Discrimination, § 284.00.

344.110. Preference because of imbalance in employment not required.

  1. Nothing contained in this chapter requires an employer, employment agency, labor organization, or joint labor-management committee subject to this chapter to grant preferential treatment to an individual or to a group because of the race, color, religion, national origin, sex, or age forty (40) and over, or because the person is a qualified individual with a disability, of the individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, national origin, sex, or age forty (40) and over, or because the person is a qualified individual with a disability, employed by an employer, referred or classified for employment by an employment agency or labor organization, admitted to membership or classified by a labor organization, or admitted to, or employed in, an apprenticeship or other training program, in comparison with the total number or percentage of persons of race, color, religion, national origin, sex, or age forty (40) and over, or because the person is a qualified individual with a disability, in the state or a community, section, or other area, or in the available workforce in the state or a community, section, or other area.
  2. Nothing contained in this chapter shall prohibit:
    1. Minimum hiring ages otherwise provided by law.
    2. State compliance with federal regulations.
    3. Termination of the employment of any person who is unable to perform the essential functions of the job, with or without reasonable accommodation.
    4. Any post-job-offer physical or medical examinations of applicants or employees which an employer requires to determine their ability to perform the essential functions of the job, with or without reasonable accommodation.
    5. An employer, labor organization, or employment agency from observing the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual.

History. Enact. Acts 1966, ch. 2, Art. 3, § 310; 1972, ch. 255, § 9; 1980, ch. 245, § 9, effective July 15, 1980; 1992, ch. 282, § 11, effective July 14, 1992; 1994, ch. 378, § 10, effective July 15, 1994.

NOTES TO DECISIONS

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973).

344.120. Refusal to rent or sell public accommodations unlawful.

Except as otherwise provided in KRS 344.140 and 344.145 , it is an unlawful practice for a person to deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation, resort, or amusement, as defined in KRS 344.130 , on the ground of disability, race, color, religion, or national origin.

History. Enact. Acts 1966, ch. 2, Art. 4, § 401; 1992, ch. 282, § 12, effective July 14, 1992.

NOTES TO DECISIONS

1. Applicability.

District court properly granted a park commissioner’s motion to dismiss the claims of former employees who alleged a violation of KRS 344.120 ; the employees did not allege that any discrimination in the provision of public accommodations on the basis of disability, race, color, religion, or national origin was involved in the policy prohibiting employees from staying as overnight guests at the park at which they worked. Roberts v. Ward, 468 F.3d 963, 2006 FED App. 0438P, 2006 U.S. App. LEXIS 29126 (6th Cir. Ky. 2006 ).

Company was properly granted summary judgment on plaintiffs’ state-law race-discrimination claim because plaintiffs sought to use judicial notice to introduce disputed facts from evidence that was not in record and evidence that constituted inadmissible hearsay, and thus, they had no admissible evidence to show that company was involved in denying them full and equal enjoyment of goods and services at restaurant. Cary v. Cordish Co., 731 Fed. Appx. 401, 2018 FED App. 0186N, 2018 U.S. App. LEXIS 8934 (6th Cir. Ky. 2018 ).

Cited in:

Lexington-Fayette Urban County Human Rights Comm'n v. Hands on Originals, 592 S.W.3d 291, 2019 Ky. LEXIS 431 ( Ky. 2019 ).

Opinions of Attorney General.

The owner of a retail establishment or an authorized representative may not arbitrarily exclude a reporter checking prices within the store unless the proprietor has a reasonable basis for such expulsion. OAG 77-17 .

KRS 344.130 exempts private clubs from compliance with this section, which makes it unlawful practice to deny an individual the full and equal enjoyment of the club, on the basis of race, color, religion or national origin, but KRS 141.010(11)(d) (now (11)(e)) and (13)(f) (now (13)(d)(6)) did not alter this exemption for private clubs, rather, it expressed the separate and independent intention that no income tax deduction would be allowed for amounts paid by taxpayers to private clubs which engage in discriminatory membership practices. OAG 91-197 .

Research References and Practice Aids

Northern Kentucky Law Review.

Bales and Korb, A Survey of Kentucky Employment Compensation Law: A Look At Employment Discrimination Claims Brought Under the Kentucky Civil Rights Act, 30 N. Ky. L. Rev. 71 (2003).

ALR

What business establishments fall within state civil rights statute provisions prohibiting discrimination. 87 A.L.R.2d 120.

Validity, construction and application of § 201(b)(3) and related provisions of the Civil Rights Act of 1964 (42 USCS § 2000a(b)(3)), prohibiting discrimination or segregation in motion-picture houses, theaters, concert halls, sports arenas, stadiums, or other places of exhibition or entertainment. 7 A.L.R. Fed. 415.

Validity, construction, and application of § 201(b)(1) and related provisions of the Civil Rights Act of 1964 (42 USCS § 2000a(b)(1)), prohibiting discrimination or segregation in inns, hotels, motels, or other establishments providing lodging to transient guests. 7 A.L.R. Fed. 450.

344.130. Definition of “place of public accommodation, resort, or amusement” for chapter — Exceptions.

As used in this chapter, unless the context requires otherwise, “place of public accommodation, resort, or amusement” includes any place, store, or other establishment, either licensed or unlicensed, which supplies goods or services to the general public or which solicits or accepts the patronage or trade of the general public or which is supported directly or indirectly by government funds, except that:

  1. A private club is not a “place of public accommodation, resort, or amusement” if its policies are determined by its members and its facilities or services are available only to its members and their bona fide guests;
  2. “Place of public accommodation, resort, or amusement” does not include a rooming or boarding house containing not more than one (1) room for rent or hire and which is within a building occupied by the proprietor as his residence; and
  3. “Place of public accommodation, resort, or amusement” does not include a religious organization and its activities and facilities if the application of KRS 344.120 would not be consistent with the religious tenets of the organization, subject to paragraphs (a), (b), and (c) of this subsection.
    1. Any organization that teaches or advocates hatred based on race, color, or national origin shall not be considered a religious organization for the purposes of this subsection.
    2. A religious organization that sponsors nonreligious activities that are operated and governed by the organization, and that are offered to the general public, shall not deny participation by an individual in those activities on the ground of disability, race, color, religion, or national origin.
    3. A religious organization shall not, under any circumstances, discriminate in its activities or use of its facilities on the ground of disability, race, color, or national origin.

History. Enact. Acts 1966, ch. 2, Art. 4, § 402; 1972, ch. 255, § 10; 1974, ch. 308, § 59; 2000, ch. 404, § 1, effective July 14, 2000.

NOTES TO DECISIONS

1. Private Clubs Not Exempt from Government Investigation.

Private club exemption found in KRS 344.130 does not give such clubs an exemption from investigation by the Kentucky Commission on Human Rights to determine whether such clubs discriminate because of race, thereby disallowing their members the right to take a tax deduction for membership fees under KRS 141.010(11)(d) (now (11)(e)). Commonwealth v. Pendennis Club, Inc., 153 S.W.3d 784, 2004 Ky. LEXIS 285 ( Ky. 2004 ).

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973).

Opinions of Attorney General.

Any attempt by a board of commissioners of a municipality to enact a public accommodation ordinance which would include barber shops and beauty shops as places of public accommodation would be in conflict with, or at least amend or modify, this section which excludes those shops under the definition and terms of the state civil rights act. OAG 70-312 .

Both this section and KRS 141.010(11)(d) (now (11)(e)) and (13)(f) (now (13)(d)(6)) deal with private clubs, and both statutes involve the Commission on Human Rights, but neither statute is repugnant to the other, and each can and should be given its independent effect. OAG 91-197 .

The legislature intended that it should be the Kentucky Commission on Human Rights which determines whether a club, organization or establishment does not afford full and equal membership based on race, color, religion, national origin or sex, and this section does not prohibit the Commission from making such determinations for this limited purpose. OAG 91-197 .

This section does not prevent the Commission on Human Rights from determining whether private clubs are affording full and equal membership called for under KRS 141.010 . OAG 91-197 .

This section private clubs from compliance with KRS 344.120 , which makes it unlawful practice to deny an individual the full and equal enjoyment of the club, on the basis of race, color, religion or national origin, but KRS 141.010(11)(d) (now (11)(e)) and (13)(f) (now (13)(d)(6)) did not alter this exemption for private clubs, rather, it expressed the separate and independent intention that no income tax deduction would be allowed for amounts paid by taxpayers to private clubs which engage in discriminatory membership practices. OAG 91-197 .

344.140. Regulation of advertisement of goods, services, and accommodations.

It is an unlawful practice for a person, directly or indirectly, to publish, circulate, issue, display, or mail, or cause to be published, circulated, issued, displayed, or mailed, a written, printed, oral, or visual communication, notice, or advertisement, which indicates that the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation, resort, or amusement will be refused, withheld from, or denied an individual on account of disability, race, color, religion, or national origin, or that the patronage of, or presence at, a place of public accommodation, resort, or amusement, of an individual, on account of disability, race, color, religion, or national origin is objectionable, unwelcome, unacceptable, or undesirable.

History. Enact. Acts 1966, ch. 2, Art. 4, § 403; 1992, ch. 282, § 13, effective July 14, 1992.

Research References and Practice Aids

ALR

Validity, construction, and application of § 201(b)(1) and related provisions of the Civil Rights Act of 1964 (42 USCS § 2000a(b)(1)), prohibiting discrimination or segregation in inns, hotels, motels, or other establishments providing lodging to transient guests. 7 A.L.R. Fed. 450.

Validity, construction, and application of § 201(b)(2) and related provisions of the Civil Rights Act of 1964 (42 USCS § 2000a(b)(2)), prohibiting discrimination or segregation in restaurants, cafeterias, and other such facilities principally engaged in selling food for consumption on the premises, and in gasoline stations. 10 A.L.R. Fed. 220.

344.145. Denial, because of sex, of equal enjoyment of restaurants, hotels, motels or facilities supported by government funds prohibited.

  1. It shall be an unlawful practice to deny an individual, because of sex, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a restaurant, hotel, motel, or any facility supported directly or indirectly by government funds.
  2. The provisions of this section shall not apply to:
    1. Restrooms, shower rooms, bath houses and similar facilities which are in their nature distinctly private;
    2. YMCA, YWCA and similar type dormitory lodging facilities;
    3. The exemptions contained in KRS 344.130 ;
    4. Hospitals, nursing homes, penal or similar facilities, to require that men and women be in the same room.

History. Enact. Acts 1974, ch. 104, § 6; 1984, ch. 155, § 1, effective July 13, 1984.

Research References and Practice Aids

Northern Kentucky Law Review.

General Law Issue: Article: De-Clothing Sex-Based Classifications - Same-Sex Marriage is Just the Beginning: Achieving Formal Sex Equality in the Modern Era, 36 N. Ky. L. Rev. 1 (2009).

344.150. Establishment of commission — Membership — Terms.

There is hereby created a Commission on Human Rights. The commission shall consist of eleven (11) members, one (1) to be appointed from each Supreme Court district and four (4) from the state at large. The Governor shall appoint all members, and shall name one (1) member as chairman. Of the eleven (11) members first appointed, three (3) shall serve for one (1) year, four (4) for two (2) years, and four (4) for three (3) years. Thereafter all members of the commission shall be appointed for three (3) years, and shall continue to serve until reappointed or replaced. In the event of the death or resignation of a member, his successor shall be appointed to serve the unexpired term for which such member had been appointed.

History. Enact. Acts 1960, ch. 76, § 2; 1976, ch. 311, § 1; 1978, ch. 384, § 577, effective June 17, 1978; 1992, ch. 235, § 8, effective July 14, 1992.

Compiler’s Notes.

This section was formerly compiled as KRS 19.020 .

Section 9 of Acts 1990 ch. 235 read, “The terms of current members on the boards, commissions, and councils treated by statutes amended by this Act shall continue in force. When a vacancy occurs for a member appointed to be the representatives of one of the former seven congressional districts, whether by resignation, death, expiration of term, or otherwise, the vacancy shall be filled as follows:

“(1) A vacancy from the former First Congressional District shall be filled by an appointee from the current First Supreme Court District.

“(2) A vacancy from the former Second Congressional District shall be filled by an appointee from the current Second Supreme Court District.

“(3) A vacancy from the former Third Congressional District shall be filled by an appointee from the current Fourth Supreme Court District.

“(4) A vacancy from the former Fourth Congressional District shall be filled by an appointee from the current Sixth Supreme Court District.

“(5) A vacancy from the former Fifth Congressional District shall be filled by an appointee from the current Third Supreme Court District.

“(6) A vacancy from the former Sixth Congressional District shall be filled by an appointee from the current Fifth Supreme Court district.

“(7) A vacancy from the former Seventh Congressional District shall be filled by an appointee from the current Seventh Supreme Court District.”

NOTES TO DECISIONS

Cited:

Simpson v. Whirlpool Corp., 604 F.2d 997, 1979 U.S. App. LEXIS 12157 (6th Cir. 1979); Pyro Mining Co. v. Kentucky Com. on Human Rights, 678 S.W.2d 393, 1984 Ky. LEXIS 290 ( Ky. 1984 ).

Opinions of Attorney General.

The Kentucky Human Rights Commission has both administrative and quasi-judicial functions; when it performs its administrative functions it is subject to the Open Meetings Law, KRS 61.805 to 61.850 . OAG 83-259 .

With regards to meetings of the Commission on Human Rights, in computing a quorum those persons, properly appointed, who are presently functioning in a “holdover” capacity are to be counted as members of the group and may be counted to arrive at the quorum; if vacancies exist on the commission because, for example, of deaths and resignations, a quorum will consist of a majority of those members remaining qualified (vacant positions are excluded). OAG 90-119 .

Research References and Practice Aids

Kentucky Law Journal.

Waldrop, Enforcement of the Fair Housing Act: What Role Should the Federal Government Play?, 74 Ky. L.J. 201 (1985-86).

344.160. Members, qualifications, compensation.

  1. The members of the Commission on Human Rights established by KRS 344.150 shall be appointed on a bipartisan basis and shall be broadly representative of employers, proprietors, trade unions, religious groups, human rights groups, and the general public.
  2. Each member is entitled to reimbursement of expenses incurred in the performance of his duties and when serving as a hearing examiner shall be compensated at a per diem rate to be established by the secretary of the Personnel Cabinet.
  3. Each member shall receive sixty-five dollars ($65) per day for attending meetings of the commission in addition to the reimbursement of expenses authorized in subsection (2) of this section.

History. Enact. Acts 1966, ch. 2, Art. 5, § 501; 1978, ch. 154, § 38, effective June 17, 1978; 1994, ch. 378, § 11, effective July 15, 1994; 1998, ch. 154, § 95, effective July 15, 1998.

NOTES TO DECISIONS

Cited:

Pyro Mining Co. v. Kentucky Com. on Human Rights, 678 S.W.2d 393, 1984 Ky. LEXIS 290 ( Ky. 1984 ).

Opinions of Attorney General.

Members of the Kentucky Commission on Human Rights may be paid at the rate of $40.00 per day for each day worked in performing the services of a hearing examiner, whether such services are performed at an official hearing or prior or subsequent thereto. OAG 71-293 .

Research References and Practice Aids

Kentucky Bench & Bar.

Vish, Age Discrimination Act: An Overview, Vol. 41, No. 1, Jan. 1977 Ky. Bench & B. 13.

344.170. Commission’s function.

The function of the commission shall be to encourage fair treatment for, to foster mutual understanding and respect among and to discourage discrimination against any racial or ethnic group or its members.

History. Enact. Acts 1960, ch. 76, § 3.

Compiler’s Notes.

This section was formerly compiled as KRS 19.030 .

344.180. Commission’s powers and duties.

The powers and duties of the commission shall be:

  1. To employ an executive director and other necessary personnel within the limits of funds made available;
  2. To conduct research projects or make studies into and publish reports on discrimination in Kentucky;
  3. To receive and investigate complaints of discrimination and to recommend ways of eliminating any injustices occasioned thereby;
  4. To hold public hearings and request the attendance of witnesses;
  5. To cooperate with other organizations, public and private, to discourage discrimination;
  6. To encourage fair treatment for all persons regardless of race or national ancestry;
  7. To make an annual report to the Governor of its activities under this chapter.

History. Enact. Acts 1960, ch. 76, § 4.

Compiler’s Notes.

This section was formerly compiled as KRS 19.040 .

NOTES TO DECISIONS

1. Authority to Investigate Private Clubs to Determine Eligibility.

By clear implication, albeit not expressly, KRS 141.010(11)(d) (now (11)(e)) grants the Kentucky Commission on Human Rights (KCHR) authority to investigate to determine whether private clubs discriminate because of race such that their members are not entitled to a tax deduction for membership fees. Commonwealth v. Pendennis Club, Inc., 153 S.W.3d 784, 2004 Ky. LEXIS 285 ( Ky. 2004 ).

Cited:

Pyro Mining Co. v. Kentucky Com. on Human Rights, 678 S.W.2d 393, 1984 Ky. LEXIS 290 ( Ky. 1984 ); Martin v. Commonwealth, 711 S.W.2d 866, 1986 Ky. App. LEXIS 1169 (Ky. Ct. App. 1986).

344.190. Additional powers and duties.

In the enforcement of this chapter, the Commission on Human Rights shall have the following powers and duties:

  1. To maintain an office in the city of Louisville and other offices within the state as may be deemed necessary.
  2. To meet and exercise its powers at any place within the Commonwealth.
  3. Within the limitations provided by law, to appoint an executive director, attorneys, hearing examiners, clerks, and other employees and agents as it may deem necessary. At the direction of the commission, attorneys appointed under this section may appear for and represent the commission in any court. The commission may, by written order, delegate the authority given by this subsection to its executive director, except as that authority relates to the appointment of its executive director.
  4. To promote the creation of local commissions on human rights, to cooperate with state, local, and other agencies, both public and private, and individuals, and to obtain upon request and utilize the services of all governmental departments and agencies.
  5. To cooperate with the United States Equal Employment Opportunity Commission, created by Section 705 of the Civil Rights Act of 1964 (78 Stat. 241), in order to achieve the purposes of that act, and with other federal and local agencies in order to achieve the purposes of that act, and with other federal and local agencies in order to achieve the purposes of this chapter.
  6. To accept gifts or bequests, grants, or other payments, public or private, to help finance its activities.
  7. To accept reimbursement pursuant to Section 709(b) of the Civil Rights Act of 1964 (78 Stat. 241) for services rendered to assist the Federal Equal Employment Opportunity Commission.
  8. To receive, initiate, investigate, seek to conciliate, hold hearings on, and pass upon complaints alleging violations of this chapter.
  9. At any time after a complaint is filed, to require answers to interrogatories, compel the attendance of witnesses, examine witnesses under oath or affirmation in person or by deposition, and require the production of documents relevant to the complaint. The commission may make rules authorizing any member or individual designated to exercise these powers in the performance of official duties.
  10. To furnish technical assistance requested by persons subject to this chapter to further their compliance with this chapter or an order issued thereunder.
  11. To make studies appropriate to effectuate the purposes and policies of this chapter and to make the results thereof available to the public.
  12. To render annual written reports to the Governor and the Legislature. The reports may contain recommendations of the commission for legislative or other action to effectuate the purposes and policies of this chapter.
  13. To create local or statewide advisory agencies that in its judgment will aid in effectuating the purpose of this chapter. The commission may empower these agencies (a) to study and report on problems of discrimination because of race, color, religion, or national origin, (b) to foster, through community effort or otherwise, goodwill among the groups and elements of the population of the state, and (c) to make recommendations to the commission for the development of policies and practices that will aid in carrying out the purposes of this chapter. Members of such committees shall serve without pay but shall be reimbursed for expenses incurred in such service. The commission may make provision for technical and clerical assistance to the committees.
  14. To adopt, promulgate, amend, and rescind regulations to effectuate the purposes and provisions of this chapter, including regulations requiring the posting of notices prepared or approved by the commission.
  15. To purchase liability insurance for the protection of all members of the commission to protect them from liability arising in the course of pursuing their duties as members of the commission and for all full-time employees to protect them from liability arising in the course or scope of their employment. This insurance shall be purchased with money contained in the agency appropriated budget.

History. Enact. Acts 1966, ch. 2, Art. 5, § 502; 1968, ch. 167, § 8; 1990, ch. 320, § 1, effective July 13, 1990; 1994, ch. 378, § 12, effective July 15, 1994.

Compiler’s Notes.

Sections 705 and 709(b) of the Civil Rights Act of 1964 referred to in this section are compiled as 42 USCS, §§ 2000e-4, 2000e-8(b).

NOTES TO DECISIONS

1. Authority to Investigate Private Clubs to Determine Eligibility.

By clear implication, albeit not expressly, KRS 141.010(11)(d) (now (11)(e)) grants the Kentucky Commission on Human Rights (KCHR) authority to investigate to determine whether private clubs discriminate because of race such that their members are not entitled to a tax deduction for membership fees. Commonwealth v. Pendennis Club, Inc., 153 S.W.3d 784, 2004 Ky. LEXIS 285 ( Ky. 2004 ).

Cited:

Simpson v. Whirlpool Corp., 604 F.2d 997, 1979 U.S. App. LEXIS 12157 (6th Cir. 1979); Martin v. Commonwealth, 711 S.W.2d 866, 1986 Ky. App. LEXIS 1169 (Ky. Ct. App. 1986).

344.200. Complaints of discrimination — Procedure — Conciliation agreements — Enforcement.

  1. An individual claiming to be aggrieved by an unlawful practice other than a discriminatory housing practice, a member of the commission, or the Attorney General may file with the commission a written sworn complaint stating that an unlawful practice has been committed, setting forth the facts upon which the complaint is based, and setting forth facts sufficient to enable the commission to identify the persons charged (referred to as the respondent in this section, KRS 344.210 , 344.230 , and 344.240 ). The commission shall make reasonable accommodations to assist persons with disabilities in filing a written sworn complaint. The commission staff or a person designated pursuant to its administrative regulations shall promptly investigate the allegations of unlawful practice set forth in the complaint and shall within five (5) days furnish the respondent with a copy of the complaint. The complaint must be filed within one hundred eighty (180) days after the alleged unlawful practice occurs.
  2. The commission or an individual designated pursuant to its administrative regulations shall determine within thirty (30) days after the complaint has been filed whether there is probable cause to believe the respondent has engaged in an unlawful practice. If it is determined that there is no probable cause to believe that the respondent has engaged in an unlawful practice, the commission shall issue an order dismissing the complaint and shall furnish a copy of the order to the complainant, the respondent, the Attorney General, and any other public officers and persons that the commission deems proper.
  3. The complainant, within ten (10) days after receiving a copy of the order dismissing the complaint, may file with the commission an application for reconsideration of the order. Upon receiving a reconsideration application, the commission or an individual designated pursuant to administrative regulation shall make a new determination within ten (10) days whether there is probable cause to believe that the respondent has engaged in an unlawful practice. If it is determined that there is no probable cause to believe that the respondent has engaged in an unlawful practice, the commission shall issue an order dismissing the complaint and furnishing a copy of the order to the complainant, the respondent, the Attorney General, and any other public officers and persons that the commission deems proper.
  4. If the staff determines, after investigation, or if the commission determines after the review provided for in subsection (3) of this section that there is probable cause to believe that the respondent has engaged in an unlawful practice, the commission staff shall endeavor to eliminate the alleged unlawful practice by conference, conciliation, and persuasion. The terms of a conciliation agreement reached with a respondent may require him to refrain from the commission of unlawful discriminatory practices in the future and make any further provisions as may be agreed upon between the commission or its staff and the respondent. If a conciliation agreement is entered into, the commission shall issue and serve on the complainant an order stating its terms. A copy of the order shall be delivered to the respondent, the Attorney General, and any other public officers and persons that the commission deems proper. Except for the terms of the conciliation agreement, neither the commission nor any officer or employee thereof shall make public, without the written consent of the complainant and the respondent, information concerning efforts in a particular case to eliminate an unlawful practice by conference, conciliation, or persuasion whether or not there is a determination of probable cause or a conciliation agreement.
  5. At the expiration of one (1) year from the date of a conciliation agreement, and at other times in its reasonable discretion, the commission staff may investigate whether the terms of the agreement have been and are being complied with by the respondent. Upon a finding that the terms of the agreement are not being complied with by the respondent, the commission shall take whatever action it deems appropriate to assure compliance.
  6. At any time after a complaint is filed, the commission may file an action in the Circuit Court in a county in which the subject of the complaint occurs, or in a county in which a respondent resides or has his principal place of business, seeking appropriate temporary relief against the respondent, pending final determination of proceedings including an order or decree restraining him from doing or procuring any act tending to render ineffectual any order the commission may enter with respect to the complaint. The court shall have power to grant temporary relief or a restraining order as it deems just and proper.
  7. Nothing in this section shall apply to any discriminatory housing practice.

HISTORY: Enact. Acts 1966, ch. 2, Art. 5, § 503; 1968, ch. 167, § 9; 1972, ch. 255, § 11; 1974, ch. 187, § 2; 1976, ch. 311, § 2; 1992, ch. 282, § 14, effective July 14, 1992; 1996, ch. 318, § 317, effective July 15, 1996; 2015 ch. 40, § 1, effective June 24, 2015.

NOTES TO DECISIONS

  1. Complaint.
  2. — Time of Filing.
  3. — Sworn.
  4. — Findings of Fact.
  5. — Time of Dismissal.
  6. — Remedy.
  7. Class Actions.
  8. Judicial Review.

2. —Time of filing.

1. Complaint.
2. — Time of Filing.

The general rule of 42 USCS § 2000e-5(e) requiring the filing of charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within 180 days is not applicable in this state. Kentucky is a “deferral” state so that the 300-day filing limitation of that federal statute is applicable if the aggrieved person initially institutes proceedings with the appropriate state agency, and a plaintiff in this state has 300 days to file a charge of discrimination with the EEOC regardless of whether or not a charge has been filed within 180 days with the appropriate state agency. Jones v. Airco Carbide Chemical Co., 691 F.2d 1200, 1982 U.S. App. LEXIS 24496 (6th Cir. Ky. 1982 ).

The time limitation for filing complaints found in subsection (1) of this section is a procedural requirement only for invoking the administrative process; it does not apply to actions commenced in the courts. The proper statute to be applied in actions of a civil rights nature is KRS 413.120(2). Clifton v. Midway College, 702 S.W.2d 835, 1985 Ky. LEXIS 268 ( Ky. 1985 ).

3. — Sworn.

The signature of the employee on the charge of discrimination form filed with the Equal Employment Opportunities Commission which was subsequently deferred to the Kentucky Commission on Human Rights did not transform that document into the written, sworn complaint before the Kentucky Commission on Human Rights contemplated by subsection (1) of this section, where there was nothing to indicate that the employee was sworn in any manner at the time she signed the charge. The absence of a written sworn complaint is a jurisdictional defect which precludes the assertion that the Kentucky agency had undertaken any authority in this regard; therefore, the employee did not elect certain remedies so as to remove jurisdiction from the Circuit Court. Clifton v. Midway College, 702 S.W.2d 835, 1985 Ky. LEXIS 268 ( Ky. 1985 ).

4. — Findings of Fact.

Subsection (2) of this section does not require findings of fact when complaints are dismissed for lack of probable cause; conversely, if the Commission on Human Rights finds probable cause and conducts a hearing, then it is required to issue findings of fact under KRS 344.230 . Curtis v. Belden Electronic Wire & Cable, Div. of Cooper Industries, Inc., 760 S.W.2d 97, 1988 Ky. App. LEXIS 111 (Ky. Ct. App. 1988), overruled in part, Humana, Inc. v. Blose, 247 S.W.3d 892, 2008 Ky. LEXIS 67 ( Ky. 2008 ).

5. — Time of Dismissal.

An administrative agency cannot enlarge statutorily prescribed time frames by an informal agreement with the parties before it; therefore, the Commission on Human Rights acted in excess of its powers by rendering its order dismissing the employee’s complaint 206 days after the complaint was filed, where the Commission and employer entered into an agreement waiving the statutory time limit, and the employee was not notified of this agreement and did not sign it. Curtis v. Belden Electronic Wire & Cable, Div. of Cooper Industries, Inc., 760 S.W.2d 97, 1988 Ky. App. LEXIS 111 (Ky. Ct. App. 1988), overruled in part, Humana, Inc. v. Blose, 247 S.W.3d 892, 2008 Ky. LEXIS 67 ( Ky. 2008 ).

6. — Remedy.

Where the Commission on Human Rights failed to complete its investigation within 30 days from the filing of a complaint, or to enter its order within 180 days, the plaintiff was not entitled to judgment on the basis of substantial error, but was restricted to the remedy provided by subsection (3) of KRS 344.240 . Curtis v. Belden Electronic Wire & Cable, Div. of Cooper Industries, Inc., 760 S.W.2d 97, 1988 Ky. App. LEXIS 111 (Ky. Ct. App. 1988), overruled in part, Humana, Inc. v. Blose, 247 S.W.3d 892, 2008 Ky. LEXIS 67 ( Ky. 2008 ).

2. —Time of filing.

Trial court erred in granting summary judgment for an employer because six months was not a reasonable period to bring a Kentucky Civil Rights Act (KCRA) claim; the six-month period for filing a claim with the Kentucky Commission on Human Rights was not comparable to the six-month limitation period provided under a decedent’s contract. Croghan v. Norton Healthcare, Inc., 2020 Ky. App. LEXIS 18 (Ky. Ct. App. Feb. 14, 2020).

7. Class Actions.

The entire scope of KRS Chapter 344 pertaining to the Human Rights Commission is cast in terms of an aggrieved individual; nowhere in the various sections is a complainant referred to in the plural, only in the singular. Thus subsection (7) of this section does not confer upon the Commission authority to institute and maintain CR 23 class actions, and such proceedings are inconsistent with the procedure and practice provided by KRS Chapter 344. Pyro Mining Co. v. Kentucky Com. on Human Rights, 678 S.W.2d 393, 1984 Ky. LEXIS 290 ( Ky. 1984 ).

8. Judicial Review.

An application for reconsideration of the Commission on Human Rights’ order dismissing a complaint is not a prerequisite to seeking judicial review of that order. Curtis v. Belden Electronic Wire & Cable, Div. of Cooper Industries, Inc., 760 S.W.2d 97, 1988 Ky. App. LEXIS 111 (Ky. Ct. App. 1988), overruled in part, Humana, Inc. v. Blose, 247 S.W.3d 892, 2008 Ky. LEXIS 67 ( Ky. 2008 ).

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973); Middlesboro Housing Authority v. Kentucky Com. on Human Rights, 553 S.W.2d 57, 1977 Ky. App. LEXIS 737 (Ky. Ct. App. 1977); Kentucky Com. on Human Rights v. International Brotherhood of Electrical Workers, 578 S.W.2d 247, 1979 Ky. LEXIS 231 ( Ky. 1979 ); Canamore v. Tube Turns Div. of Chemetron Corp., 676 S.W.2d 800, 1984 Ky. App. LEXIS 581 (Ky. Ct. App. 1984); Maurya v. Peabody Coal Co., 823 F.2d 933, 1987 U.S. App. LEXIS 8343 (6th Cir. 1987), cert. denied, 484 U.S. 1067, 108 S. Ct. 1030, 98 L. Ed. 2d 994, 1988 U.S. LEXIS 800, 56 U.S.L.W. 3569, 45 Empl. Prac. Dec. (CCH) P37761, 45 Fair Empl. Prac. Cas. (BNA) 1896 (1988); Day v. Alcan Aluminum Corp., 675 F. Supp. 1508, 1987 U.S. Dist. LEXIS 12276 (W.D. Ky. 1987 ); Kentucky Com. on Human Rights v. Ken Morris Realty Co., 775 S.W.2d 947, 1989 Ky. App. LEXIS 112 (Ky. Ct. App. 1989).

Opinions of Attorney General.

Since the Commission can be ordered by the Circuit Court to schedule a hearing at any time after the 180 day period expires, the Commission’s delay in scheduling a hearing would not be grounds for barring an action on a complaint at any time. OAG 77-203 .

Where three women not hired as firemen for a city of the third class filed a complaint of sex discrimination with the city human rights commission, a conference, held under this section, designed to achieve conciliation, need not be open to the public under KRS 61.805 to 61.850 . OAG 79-412 .

Where a proceeding has been instituted under this section and has resulted in a dismissal of the complaint or the entry of a conciliation agreement, only the order of dismissal or the terms of the conciliation agreement are subject to public inspection. OAG 84-376 .

Unless a proceeding has been instituted under this chapter, all information obtained by the county human rights commission remains privileged and the commission must refuse to disclose such information without the person’s consent, unless ordered to do so by a court of competent jurisdiction. If a proceeding has been instituted, what is available for public inspection is dependent upon the level to which the proceeding has progressed. OAG 85-5 .

Complaints filed with the Commonwealth Commission on Human Rights are not exempt from the Open Records Law once final action has been taken. Consequently, paraphrasing the allegations in a press release is not illegal. OAG 88-55 .

Research References and Practice Aids

Kentucky Bench & Bar.

Schwemm, Kentucky Is a Leader in Fair Housing Enforcement, Volume 52, No. 4, Fall 1988 Ky. Bench & B. 26.

Kentucky Law Journal.

Waldrop, Enforcement of the Fair Housing Act: What Role Should the Federal Government Play?, 74 Ky. L.J. 201 (1985-86).

344.210. Notice of complaint — Hearing procedures.

  1. Within sixty (60) days after a complaint other than a complaint alleging a discriminatory housing practice is filed, unless the commission has issued an order dismissing the complaint or stating the terms of a conciliation agreement or within thirty (30) days after an application for review is filed under subsection (3) of KRS 344.200 , the commission shall serve on the respondent by certified mail a written notice, together with a copy of the complaint as it may have been amended, requiring the respondent to answer the allegations of the complaint at a hearing held in accordance with this chapter and the provisions of KRS Chapter 13B. A copy of the notice shall be furnished to the complainant, the Attorney General, and any other public officers and persons that the commission deems proper.
  2. A member of the commission who filed the complaint or endeavored to eliminate the alleged unlawful practice by conference, conciliation, or persuasion shall not participate in the hearing or in the subsequent deliberation of the commission.
  3. The respondent shall file an answer with the commission by certified mail within twenty (20) days after receipt by the respondent of service under KRS 344.200 . The commission or the complainant may amend a complaint and the respondent may amend an answer at any time prior to the issuance of final order pursuant to this section based on the complaint, but no final order shall be issued unless the respondent has had the opportunity of a hearing on the complaint or amendment on which the final order is based.
  4. An administrative hearing on a discriminatory housing practice shall be held pursuant to this section and KRS 344.640 and administrative regulations promulgated pursuant to this chapter.

History. Enact. Acts 1966, ch. 2, Art. 5, § 504; 1980, ch. 114, § 96, effective July 15, 1980; 1984, ch. 155, § 2, effective July 13, 1984; 1992, ch. 282, § 15, effective July 14, 1992; 1994, ch. 378, § 13, effective July 15, 1994; 1996, ch. 318, § 318, effective July 15, 1996.

NOTES TO DECISIONS

  1. Notice.
  2. Time of filing.
1. Notice.

The fact that the commission on human rights did not notify country club of a hearing on a complaint against it within 60 days after the complaint was filed did not deprive the commission of jurisdiction. Whispering Hills Country Club, Inc. v. Kentucky Com. on Human Rights, 475 S.W.2d 645, 1972 Ky. LEXIS 411 ( Ky. 1972 ).

Under this section, the Commission must give notice of a hearing on the complaint unless: (a) the complaint has been dismissed; (b) a conciliation agreement has been reached; or (c) an application for reconsideration has been filed; there is no provision that requires the complaint be dismissed unless probable cause is found to exist, since the hearing provision does not mention probable cause as a prerequisite, lack of such a finding does not warrant summary dismissal. Kentucky Com. on Human Rights v. International Brotherhood of Electrical Workers, 578 S.W.2d 247, 1979 Ky. LEXIS 231 ( Ky. 1979 ).

2. Time of filing.

Trial court erred in granting summary judgment for an employer because six months was not a reasonable period to bring a Kentucky Civil Rights Act (KCRA) claim; the six-month period for filing a claim with the Kentucky Commission on Human Rights was not comparable to the six-month limitation period provided under a decedent’s contract. Croghan v. Norton Healthcare, Inc., 2020 Ky. App. LEXIS 18 (Ky. Ct. App. Feb. 14, 2020).

Cited:

Kentucky Com. on Human Rights v. Fraser, 625 S.W.2d 852, 1981 Ky. LEXIS 311 ( Ky. 1981 ).

Opinions of Attorney General.

Since the Commission can be ordered by the Circuit Court to schedule a hearing at any time after the 180 day period expires, the Commission’s delay in scheduling a hearing would not be grounds for barring an action on a complaint at any time. OAG 77-203 .

Where a proceeding has been instituted under this section and a hearing has been held, the hearing transcript, all evidence introduced at the hearing and the subsequent decision of the commission are subject to public inspection under the Open Records Law, KRS 61.872 to 61.884 . OAG 84-376 .

Research References and Practice Aids

Kentucky Law Journal.

Waldrop, Enforcement of the Fair Housing Act: What Role Should the Federal Government Play?, 74 Ky. L.J. 201 (1985-86).

344.220. Documentary evidence, effect. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 2, Art. 6, § 605) was repealed by Acts 1996, ch. 318, § 357, effective July 15, 1996.

344.230. Orders of commission — Nature of affirmative action.

  1. If the commission determines that the respondent has not engaged in an unlawful practice, the commission shall issue a final order in accordance with the provisions of KRS Chapter 13B dismissing the complaint. A copy of the order shall be delivered to the complainant, the respondent, the Attorney General, and any other public officers and persons that the commission deems proper.
  2. If the commission determines that the respondent has engaged in an unlawful practice, the commission shall issue a final order requiring the respondent to cease and desist from the unlawful practice and to take affirmative action as in the judgment of the commission will carry out the purposes of this chapter. A copy of the final order shall be delivered to the respondent, the complainant, the Attorney General, and to any other public officers and persons that the commission deems proper.
  3. Affirmative action ordered under this section may include, but is not limited to:
    1. Hiring, reinstatement, or upgrading of employees with or without back pay. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.
    2. Admission or restoration of individuals to union membership, admission to or participation in a guidance program, apprenticeship training program, on-the-job training program, or other occupational training or retraining program, and the utilization of objective criteria in the admission of individuals to such programs.
    3. Admission of individuals to a place of public accommodation, resort, or amusement.
    4. The extension to all individuals of the full and equal enjoyment of the advantages, facilities, privileges, and services of the respondent.
    5. Reporting as to the manner of compliance.
    6. Posting notices in conspicuous places in the respondent’s place of business in form prescribed by the commission.
    7. Sale, exchange, lease, rental, assignment, or sublease of real property to an individual.
    8. Payment to the complainant of damages for injury caused by an unlawful practice including compensation for humiliation and embarrassment, and expense incurred by the complainant in obtaining alternative housing accommodations and for other costs actually incurred by the complainant as a direct result of an unlawful practice.
  4. The commission may publish or cause to be published the names of persons who have been determined to have engaged in an unlawful practice.

History. Enact. Acts 1966, ch. 2, Art. 5, §§ 505, 506; 1974, ch. 187, § 3; 1996, ch. 318, § 319, effective July 15, 1996.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Affirmative Action.
  3. — Damages.
  4. Findings of Fact.
  5. — Contents.
  6. Statute of Limitations.
  7. Jury Trial.
1. Constitutionality.

Subdivision (3)(h) of this section does not unconstitutionally deprive a defendant employer in a discrimination action brought before the State Commission on Human Rights of his right to a jury trial, since the prohibition against the right to be free from discrimination based on race, color, religion, national origin, sex and age is a creature of statute and does not fall within the scope of the common law right to trial by jury preserved by the Seventh Amendment to the United States Constitution and by Ky. Const., § 7. Kentucky Com. on Human Rights v. Fraser, 625 S.W.2d 852, 1981 Ky. LEXIS 311 ( Ky. 1981 ).

The grant of authority to the Commission on Human Rights, pursuant to subdivision (3)(h) of this section, to assess damages for humiliation and embarrassment caused by discrimination is not an unconstitutional delegation or usurpation of judicial powers since the commission is subject to sufficient safeguards, provided by (1) agency regulations, (2) the provisions in KRS 344.200 to 344.270 for a full due-process hearing, (3) the agency’s experience in making similar determinations, and (4) the provisions for judicial review in KRS 344.240 , to prevent an abuse of discretion. Kentucky Com. on Human Rights v. Fraser, 625 S.W.2d 852, 1981 Ky. LEXIS 311 ( Ky. 1981 ).

2. Affirmative Action.
3. — Damages.

The power of the Kentucky Human Rights Commission to award monetary damages for embarrassment and humiliation suffered as a result of unlawful discrimination is one of the enumerated forms of “affirmative action” which the Commission may take based on findings of fact and conclusions of law that such relief was warranted. Kentucky Com. on Human Rights v. Barbour, 587 S.W.2d 849, 1979 Ky. App. LEXIS 475 (Ky. Ct. App. 1979); Kentucky Com. on Human Rights v. Barbour, 625 S.W.2d 860, 1981 Ky. LEXIS 312 ( Ky. 1981 ).

Subdivision (3)(h) of this section provides for compensatory, not punitive damages and, therefore, evidence of discrimination alone is not the standard by which to evaluate damages; there must be evidence of actual humiliation and embarrassment. Kentucky Com. on Human Rights v. Fraser, 625 S.W.2d 852, 1981 Ky. LEXIS 311 ( Ky. 1981 ).

No specific monetary ceiling for the award of damages for humiliation and embarrassment is constitutionally required since a specific limit could itself be arbitrary, and the Commission’s experience in gauging similar cases gives it a range of reasonable awards which may help to make it less susceptible to an unreasonable finding than an inexperienced jury might be. Kentucky Com. on Human Rights v. Fraser, 625 S.W.2d 852, 1981 Ky. LEXIS 311 ( Ky. 1981 ).

Where the evidence showed that the respondent landlord refused to rent an apartment to claimant and her husband for reasons of racial discrimination, the evidence of humiliation and embarrassment was sufficient to sustain the Commission’s award of $750 to the prospective tenant. Kentucky Com. on Human Rights v. Barbour, 625 S.W.2d 860, 1981 Ky. LEXIS 312 ( Ky. 1981 ).

Compensatory damages for psychological distress, humiliation, pain and suffering may not be awarded by the Circuit Court in an action brought under the Age Discrimination in Employment Act of 1967 (ADEA), 29 USCS, section 621 et seq. or under the Kentucky Civil Rights Act, KRS 344.010 et seq. Berry v. General Electric Co., 541 F. Supp. 800, 1982 U.S. Dist. LEXIS 13189 (W.D. Ky. 1982 ), disapproved, Mitchell v. Seaboard S. Railroad, 883 F.2d 451, 1989 U.S. App. LEXIS 12284 (6th Cir. Ky. 1989 ).

The statement in KRS 344.450 to the effect that an injunction and an award of actual damages “shall be in addition to any other remedies contained in this chapter,” does not imply that a plaintiff can sidestep the administrative processes of the commission on human rights and still claim in a Circuit Court action the remedies delegated solely to that administrative body under this section, such as the awarding of compensatory damages for humiliation and embarrassment. Ellis v. Logan Co., 543 F. Supp. 586, 1982 U.S. Dist. LEXIS 13732 (W.D. Ky. 1982 ), disapproved, Mitchell v. Seaboard S. Railroad, 883 F.2d 451, 1989 U.S. App. LEXIS 12284 (6th Cir. Ky. 1989 ); Kentucky Com. on Human Rights v. Barbour, 625 S.W.2d 860, 1981 Ky. LEXIS 312 ( Ky. 1981 ).

4. Findings of Fact.

Compliance with the provisions that affirmative action must be in accordance with the Commission’s findings of fact must be evidenced by detailed written findings in support of any award of damages for embarrassment and humiliation. Kentucky Com. on Human Rights v. Barbour, 587 S.W.2d 849, 1979 Ky. App. LEXIS 475 (Ky. Ct. App. 1979); Kentucky Com. on Human Rights v. Barbour, 625 S.W.2d 860, 1981 Ky. LEXIS 312 ( Ky. 1981 ).

Subsection (2) of KRS 344.200 does not require findings of fact when complaints are dismissed for lack of probable cause; conversely, if the Commission on Human Rights finds probable cause and conducts a hearing, then it is required to issue findings of fact under this section. Curtis v. Belden Electronic Wire & Cable, Div. of Cooper Industries, Inc., 760 S.W.2d 97, 1988 Ky. App. LEXIS 111 (Ky. Ct. App. 1988), overruled in part, Humana, Inc. v. Blose, 247 S.W.3d 892, 2008 Ky. LEXIS 67 ( Ky. 2008 ).

5. — Contents.

Where the Commission finds that humiliation and embarrassment have resulted from unlawful discrimination, it must set out with considerable particularity the nature and degree of the injury suffered; elements which would be appropriate to discuss are: (1) the number of persons exposed to the defendant’s conduct; (2) the number of encounters during which the claimant was exposed to behavior inducing embarrassment or humiliation; (3) whether the actions of the defendant caused humiliating public exposure; (4) any evidence of severe emotional damage; and (5) the presence or absence of aggravating factors such as abusive language. Kentucky Com. on Human Rights v. Barbour, 587 S.W.2d 849, 1979 Ky. App. LEXIS 475 (Ky. Ct. App. 1979); Kentucky Com. on Human Rights v. Barbour, 625 S.W.2d 860, 1981 Ky. LEXIS 312 ( Ky. 1981 ).

6. Statute of Limitations.

The five-year statute of limitations for statutory claims under subdivision (2) of KRS 413.120 is the proper limit to be placed upon awards of back pay in employment discrimination cases. Kentucky Com. on Human Rights v. Owensboro, 750 S.W.2d 422, 1988 Ky. LEXIS 12 ( Ky. 1988 ).

Trial court erred in granting summary judgment for an employer because six months was not a reasonable period to bring a Kentucky Civil Rights Act (KCRA) claim; the six-month period for filing a claim with the Kentucky Commission on Human Rights was not comparable to the six-month limitation period provided under a decedent’s contract. Croghan v. Norton Healthcare, Inc., 2020 Ky. App. LEXIS 18 (Ky. Ct. App. Feb. 14, 2020).

7. Jury Trial.

The Kentucky Civil Rights Act provides alternative sources of relief, one administrative and one judicial. The question before the court in Kentucky Comm’n on Human Rights v. Fraser, 625 S.W.2d 852, 1981 Ky. LEXIS 311 ( Ky. 1981 ), was confined solely to the constitutionality of the administrative remedy, and the holding in Fraser was that the administrative process was “not an unconstitutional usurpation of judicial power.” Decisionmaking performed by an administrative agency is an executive function. The right to trial by jury does not attach to an executive function. It is protected only within the exercise of judicial power. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

Cited:

Middlesboro Housing Authority v. Kentucky Com. on Human Rights, 553 S.W.2d 57, 1977 Ky. App. LEXIS 737 (Ky. Ct. App. 1977); Canamore v. Tube Turns Div. of Chemetron Corp., 676 S.W.2d 800, 1984 Ky. App. LEXIS 581 (Ky. Ct. App. 1984); Pyro Mining Co. v. Kentucky Com. on Human Rights, 678 S.W.2d 393, 1984 Ky. LEXIS 290 ( Ky. 1984 ); Easton v. Louisville & Jefferson County Bd. of Health, 706 F. Supp. 536, 1987 U.S. Dist. LEXIS 14491 (W.D. Ky. 1987 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Schwemm, Kentucky Is a Leader in Fair Housing Enforcement, Volume 52, No. 4, Fall 1988 Ky. Bench & B. 26.

Kentucky Law Journal.

Kentucky Law Survey, Rogers and Sims, Administrative Law, 69 Ky. L.J. 489 (1980-81).

Kentucky Law Survey, Oberst and Hunt, Administrative and Constitutional Law, 71 Ky. L.J. 417 (1982-83).

ALR

Recovery of damages for emotional distress resulting from racial, ethnic, or religious abuse or discrimination. 40 A.L.R.3d 1290.

Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions. 85 A.L.R.3d 351.

Requiring apology as “affirmative action” or other form of redress under state civil rights act. 85 A.L.R.3d 402.

Award of compensatory damages, aside from backpay or frontpay, for violation of Title VII of Civil Rights Act of 1964 (42 USCS § 2000e et seq.). 48 A.L.R. Fed. 338.

Backpay as recoverable in action for refusal to hire in violation of 42 USCS § 1983. 58 A.L.R. Fed. 667.

344.240. Scope of and procedure for judicial review — Hearing — Appeal.

  1. Any complainant, respondent, or intervenor aggrieved by a final order of the commission, including a final order dismissing any complaint or stating the terms of a conciliation agreement, may obtain judicial review, and the commission may obtain an order of the court for enforcement of its final order, in a proceeding brought in the Circuit Court in a county in which the alleged unlawful practice which is the subject of the final order or complaint occurs or in which a respondent resides or has his principal place of business.
  2. Except for a discriminatory housing practice, if the commission has failed to schedule a hearing in accordance with KRS 344.210(1) or has failed to issue a final order within one hundred eighty (180) days after the complaint is filed, the complainant, respondent, Attorney General, or an intervenor may petition the Circuit Court in a county in which the alleged unlawful practice set forth in the complaint occurs or in which the petitioner resides or has his principal place of business for an order directing the commission to schedule a hearing or to issue its final order. The court shall follow the procedure set forth in KRS Chapter 13B and this section so far as applicable.
  3. If before the expiration of sixty (60) days after the date of the commission order is entered for a discriminatory housing practice and no petition for review has been filed under subsection (1) of this section, any person entitled to under the discriminatory housing practice order may petition for a decree enforcing the order in the Circuit Court for the county in which the discriminatory housing practice is alleged to have occurred.
  4. Except for subsection (2) of this section, all provisions in this section shall apply to orders issued in a discriminatory housing practice proceeding.

History. Enact. Acts 1966, ch. 2, Art. 5, § 507; 1968, ch. 167, § 10; 1976, ch. 62, § 120; 1992, ch. 282, § 26, effective July 14, 1992; 1996, ch. 318, § 320, effective July 15, 1996.

NOTES TO DECISIONS

  1. Construction.
  2. Jurisdiction.
  3. Findings.
  4. Dual Enforcement System.
  5. Scope of Review.
  6. Running of Filing Period.
  7. Civil Remedy.
  8. Petition to Court.
1. Construction.

This section is not illegal in that it does not provide for a de novo trial in the Circuit Court. Whispering Hills Country Club, Inc. v. Kentucky Com. on Human Rights, 475 S.W.2d 645, 1972 Ky. LEXIS 411 ( Ky. 1972 ).

2. Jurisdiction.

Fact that the Commission on Human Rights did not notify country club of a hearing on a complaint against it within 60 days after the complaint was filed did not deprive the commission of jurisdiction. Whispering Hills Country Club, Inc. v. Kentucky Com. on Human Rights, 475 S.W.2d 645, 1972 Ky. LEXIS 411 ( Ky. 1972 ).

3. Findings.

In action which alleged unlawful practices of racial discrimination in municipal housing, where the findings of fact of the Kentucky Commission on Human Rights are supported by substantial evidence, they are conclusive. Middlesboro Housing Authority v. Kentucky Com. on Human Rights, 553 S.W.2d 57, 1977 Ky. App. LEXIS 737 (Ky. Ct. App. 1977) (decided under prior law).

To justify vacating its judgment, the Circuit Court first would have to declare the commission’s finding that no effort was made at accommodation clearly erroneous pursuant to this section. Kentucky Com. on Human Rights v. Commonwealth, Dep't for Human Resources, Hazelwood Hospital, 564 S.W.2d 38, 1978 Ky. App. LEXIS 496 (Ky. Ct. App. 1978) (decided under prior law).

The rule in this state is that if there is substantial evidence in the record to support an agency’s findings, the findings will be upheld, even though there may be conflicting evidence in the record; thus, the Court of Appeals was clearly in error when it interpreted the standard of review in subsection (2) of this section to mean that the findings of the State Commission on Human Rights had to be supported by a preponderance of the evidence. Kentucky Com. on Human Rights v. Fraser, 625 S.W.2d 852, 1981 Ky. LEXIS 311 ( Ky. 1981 ) (decided under prior law).

The findings of the Commission on Human Rights are “clearly erroneous” under subsection (2) of this section if arbitrary or unsupported by substantial evidence in the record. Kentucky Com. on Human Rights v. Fraser, 625 S.W.2d 852, 1981 Ky. LEXIS 311 ( Ky. 1981 ) (decided under prior law).

4. Dual Enforcement System.

In reading this chapter as a whole, it appears that the legislature created a dual system for enforcement of the Kentucky Civil Rights Act, one through the administrative process and one through Circuit Court action, and the two procedures are to be alternative, not identical means of obtaining relief. Berry v. General Electric Co., 541 F. Supp. 800, 1982 U.S. Dist. LEXIS 13189 (W.D. Ky. 1982 ), disapproved, Mitchell v. Seaboard S. Railroad, 883 F.2d 451, 1989 U.S. App. LEXIS 12284 (6th Cir. Ky. 1989 ).

5. Scope of Review.

The standard of review formerly set forth in subsection (2) of this section does not prohibit the reviewing court from considering opinion evidence unsupported by factual or objective evidence in determining whether a given qualification is job-related. Kentucky Com. on Human Rights v. Commonwealth, Dep't of Justice, Bureau of State Police, 586 S.W.2d 270, 1979 Ky. App. LEXIS 451 (Ky. Ct. App. 1979) (decided under prior law).

This section dictates that the judicial scope of review of the findings of the Commission on Human Rights is limited to determining whether those findings are clearly erroneous and that those findings shall be conclusive if supported by probative and substantial evidence, viewing the entire record; however, if the Commission has misapplied the law, its decision becomes an arbitrary and therefore, a clearly erroneous one. Evans v. General Tire & Rubber Co., Mayfield Div., 662 S.W.2d 843, 1983 Ky. App. LEXIS 389 (Ky. Ct. App. 1983) (decided under prior law).

6. Running of Filing Period.

A “notice of right to sue” letter issued by the EEOC pursuant to 42 USCS § 2000e et seq., standing alone, does not constitute an order of the commission so as to activate the 30-day time limit of former subsection (6) of this section. Canamore v. Tube Turns Div. of Chemetron Corp., 676 S.W.2d 800, 1984 Ky. App. LEXIS 581 (Ky. Ct. App. 1984) (Decision prior to 1996 amendment).

Trial court erred in granting summary judgment for an employer because six months was not a reasonable period to bring a Kentucky Civil Rights Act (KCRA) claim; the six-month period for filing a claim with the Kentucky Commission on Human Rights was not comparable to the six-month limitation period provided under a decedent’s contract. Croghan v. Norton Healthcare, Inc., 2020 Ky. App. LEXIS 18 (Ky. Ct. App. Feb. 14, 2020).

7. Civil Remedy.

An individual who has charges of discrimination referred by the federal agency to the state agency, but without an order issued by the Kentucky agency, is not precluded by former subsection (6) of this section from pursuing rights under KRS 344.450 ; where the Kentucky Commission on Human Rights never gave the employee’s discrimination charges the slightest consideration, and it never issued any order relating to the claim of discrimination, her action was not barred. Clifton v. Midway College, 702 S.W.2d 835, 1985 Ky. LEXIS 268 ( Ky. 1985 ) (Decision prior to 1996 amendment).

8. Petition to Court.

Where the Commission on Human Rights failed to complete its investigation within 30 days from the filing of a complaint, or to enter its order within 180 days, the plaintiff was not entitled to judgment on the basis of substantial error, but was restricted to the remedy provided by subsection (3) (now (2)) of this section. Curtis v. Belden Electronic Wire & Cable, Div. of Cooper Industries, Inc., 760 S.W.2d 97, 1988 Ky. App. LEXIS 111 (Ky. Ct. App. 1988), overruled in part, Humana, Inc. v. Blose, 247 S.W.3d 892, 2008 Ky. LEXIS 67 ( Ky. 2008 ).

Cited:

Kentucky Com. on Human Rights v. Kerns Bakery, Inc., 644 S.W.2d 350, 1982 Ky. App. LEXIS 277 (Ky. Ct. App. 1982), cert. denied, 462 U.S. 1133, 103 S. Ct. 3115, 77 L. Ed. 2d 1369, 1983 U.S. LEXIS 635 (1983); Pyro Mining Co. v. Kentucky Com. on Human Rights, 678 S.W.2d 393, 1984 Ky. LEXIS 290 ( Ky. 1984 ); Kentucky Com. on Human Rights v. Ken Morris Realty Co., 775 S.W.2d 947, 1989 Ky. App. LEXIS 112 (Ky. Ct. App. 1989); Kentucky Ctr. for Arts v. Handley, 827 S.W.2d 697, 1991 Ky. App. LEXIS 132 (Ky. Ct. App. 1991); Frito-Lay v. United States EEOC, 964 F. Supp. 236, 1997 U.S. Dist. LEXIS 6754 (W.D. Ky. 1997 ).

Opinions of Attorney General.

Since the Commission can be ordered by the Circuit Court to schedule a hearing at any time after the 180 day period expires, the Commission’s delay in scheduling a hearing would not be grounds for barring an action on a complaint at any time. OAG 77-203 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Rogers and Sims, Administrative Law, 69 Ky. L.J. 489 (1980-81).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination, § 308.00.

344.250. Investigations, powers, records, confidential nature of.

  1. In connection with an investigation of a complaint filed under this chapter, the commission or its designated representative at any reasonable time may request access to premises, records, and documents relevant to the complaint and the right to examine, photograph and copy evidence.
  2. Every person subject to this chapter shall (a) make and keep records relevant to the determination of whether unlawful practices have been or are being committed, (b) preserve such records for such periods, and (c) make such reports therefrom, as the commission shall prescribe by regulation or order, after public hearing, as reasonable, necessary, or appropriate for the enforcement of this chapter or the regulations or orders thereunder.
  3. The commission, by regulation, shall require each person subject to this chapter which controls an apprenticeship or other training program to keep all records reasonably necessary to carry out the purpose of the chapter, including, but not limited to, a list of applicants who wish to participate in such program, including the chronological order in which applications were received, and shall furnish to the commission upon request, a detailed description of the manner in which persons are selected to participate in the apprenticeship or other training programs.
  4. A person who believes that the application to it of a regulation or order issued under this section would result in undue hardship may apply to the commission for an exemption from the application of the regulation or order. If the commission finds that the application of the regulation or order to the person in question would impose an undue hardship, the commission may grant appropriate relief.
  5. So as to avoid undue burdens on persons subject to this chapter, records and reports required by the commission under this section shall conform as near as may be to similar records and reports required by federal law and the laws of other states and to customary record-keeping practice.
  6. It is unlawful for a commissioner or employee of the commission to make public with respect to a particular person without his consent information obtained by the commission pursuant to its authority under this section except as reasonably necessary to the conduct of a proceeding under this chapter.
  7. If a person fails to permit access, examination, photographing or copying or fails to make, keep, or preserve records or make reports in accordance with this section, the Circuit Court for the county in which such person is found, resides, or has his principal place of business, upon application of the commission, may issue an order requiring compliance.

History. Enact. Acts 1966, ch. 2, Art. 5, § 508.

Opinions of Attorney General.

Unless a proceeding has first been instituted under KRS Chapter 344, all information obtained by the Commission pursuant to this section remains privileged, and in such a case, the Commission must refuse to disclose such information without the person’s consent unless ordered to do so by a court of competent jurisdiction. OAG 80-148 .

Unless a proceeding has been instituted under this chapter, all information obtained by the county human rights commission remains privileged and the commission must refuse to disclose such information without the person’s consent, unless ordered to do so by a court of competent jurisdiction. If a proceeding has been instituted, what is available for public inspection is dependent upon the level to which the proceeding has progressed. OAG 85-5 (modified by OAG 88-55 where inconsistent).

An allegation made in a complaint is not information obtained by the Commonwealth Commission on Human Rights pursuant to its authority under subsection (6) of this section, and disclosure of such allegations is not prohibited thereby. OAG 88-55 (modifying OAG 85-5 where inconsistent).

The Kentucky Commission on Human Rights did not violate the Open Records Act in denying a request to inspect all records submitted by an American Legion Post to substantiate the fact that it employed less than eight (8) people and was, therefore, not subject to the commission’s jurisdiction as the records which were requested contained information obtained by the commission pursuant to its authority to conduct investigations of complaints and inspect documents which are relevant to those complaints and, therefore, the commission was prohibited from making the information public without the consent of the American Legion Post except as reasonably necessary to the conduct of proceedings under KRS Chapter 344. OAG 99-ORD-20.

A county human relations commission did not violate the Open Records Act by denying a request for access to the contents of the file relating to the requester’s housing discrimination case since the requested records contained information obtained by the county human relations commission pursuant to its authority under this section to conduct investigations of complaints and, therefore, the commission was prohibited from making the information public except as reasonably necessary to the conduct of proceedings under KRS Chapter 344. OAG 99-ORD-224.

The Commission on Human Rights properly partially denied a request for copies of the complaint, response, conciliation agreement, and any other materials related to a particular case where the withheld materials contained highly personal and confidential information concerning individuals, including but not limited to names, social security numbers, phone numbers, and addresses and also contained notes, correspondence with private individuals, and preliminary recommendations, and memoranda containing opinions formulated and recommendations made concerning the complaint and investigation. OAG 00-ORD-209.

Given the expansive language of KRS 344.250(6), the fact that the person seeking access to a record or records obtained by the Commission in discharging its duties under Chapter 344 is the person who originally filed the complaint does not alter the analysis or compel a different result: the records are confidential and may not be disclosed. The fact that federal courts have interpreted similar provisions of the federal EEOC act differently likewise doesn’t matter since the state law is not preempted. OAG 02-ORD-76.

344.260. Compensation of witnesses.

Witnesses summoned by a subpoena in a discriminatory housing proceeding shall be entitled to the same witness and mileage fees as witnesses in proceedings in Circuit Court.

History. Enact. Acts 1966, ch. 2, Art. 5, § 509; 1992, ch. 282, § 29, effective July 14, 1992; 1996, ch. 318, § 321, effective July 15, 1996.

Opinions of Attorney General.

A review of the authority of the State Human Rights Commission indicates that the burden rests upon that agency to substantiate its request for information by showing that the information requested is relevant to the complaint under consideration. OAG 78-382 .

344.270. Commission or court not to take jurisdiction over claim for unlawful practice while claim pending before the other body — Final determination exclusive.

The provisions of KRS 13B.140 notwithstanding, commission shall not take jurisdiction over any claim of an unlawful practice under this chapter while a claim of the same person seeking relief for the same grievance under KRS 344.450 is pending. A state court shall not take jurisdiction over any claim of an unlawful practice under this chapter while a claim of the same person seeking relief for the same grievance is pending before the commission. A final determination by a state court or a final order of the commission of a claim alleging an unlawful practice under KRS 344.450 shall exclude any other administrative action or proceeding brought in accordance with KRS Chapter 13B by the same person based on the same grievance.

History. Enact. Acts 1966, ch. 2, Art. 6, § 604(b); 1984, ch. 155, § 3, effective July 13, 1984; 1996, ch. 318, § 322, effective July 15, 1996.

NOTES TO DECISIONS

Analysis

  1. Union Contractual Rights.
  2. Federal Action Pending.
  3. Claim Not Pending.
  4. Circuit Court Action.
  5. Election of Remedies.
1. Union Contractual Rights.

Union contractual rights and rights emanating under KRS Chapter 344 are independent and equally available to aggrieved employees; simultaneous pursuit of these rights is not restricted by this section. McNeal v. Armour & Co., 660 S.W.2d 957, 1983 Ky. App. LEXIS 303 (Ky. Ct. App. 1983).

2. Federal Action Pending.

A person who has made a complaint of employment discrimination with the Equal Employment Opportunity Commission (EEOC) cannot invoke the jurisdiction of a Kentucky court under KRS 344.450 while his claim is pending with the federal body; however, if his claim is not resolved by the EEOC and that body relinquishes jurisdiction or responsibility over his claim by issuing to him what is commonly known as a “right to sue” letter as provided by 42 USCS 2000e-5(f)(1), the claimant may bring an action in a Kentucky court under KRS 344.450 if he does not elect instead to proceed in a federal court under 42 USCS 2000e et seq. McNeal v. Armour & Co., 660 S.W.2d 957, 1983 Ky. App. LEXIS 303 (Ky. Ct. App. 1983).

This section was intended to deny jurisdiction to those litigants who would simultaneously seek redress in the federal forum. McNeal v. Armour & Co., 660 S.W.2d 957, 1983 Ky. App. LEXIS 303 (Ky. Ct. App. 1983).

3. Claim Not Pending.

The signature of the employee on the charge of discrimination form filed with the Equal Employment Opportunities Commission which was subsequently deferred to the Kentucky Commission on Human Rights did not transform that document into the written, sworn complaint before the Kentucky Commission on Human Rights contemplated by KRS 344.200(1), where there was nothing to indicate that the employee was sworn in any manner at the time she signed the charge. The absence of a written sworn complaint is a jurisdictional defect which precludes the assertion that the Kentucky agency had undertaken any authority in this regard; therefore, the employee did not elect certain remedies so as to remove jurisdiction from the Circuit Court. Clifton v. Midway College, 702 S.W.2d 835, 1985 Ky. LEXIS 268 ( Ky. 1985 ).

The plaintiff’s sexual discrimination claim was not barred by her prior filing of a claim with a county human relations commission where the plaintiff withdrew her claim with the county commission prior to the issuance of a determination by the county commission. Thomas v. Forest City Enters., 2001 U.S. Dist. LEXIS 16632 (W.D. Ky. Oct. 17, 2001).

4. Circuit Court Action.

Once a claimant alleging illegal discrimination has received a “Notice of Right to Sue” from the Equal Employment Opportunities Commission, nothing in this section is an obstacle to asserting a claim in a Kentucky Circuit Court pursuant to KRS 344.450 , so long as the claimant does not seek to use a parallel remedy in federal court. Clifton v. Midway College, 702 S.W.2d 835, 1985 Ky. LEXIS 268 ( Ky. 1985 ).

State employees claiming discrimination were afforded a choice of remedies and could pursue an administrative remedy or a judicial remedy. When an employee elected to pursue the administrative remedy, he was bound by his election and was barred from filing a discrimination lawsuit after the administrative proceeding’s outcome was adverse to him; as such, the circuit court properly granted summary judgment in favor of the state agency in the employee’s discrimination suit. McKissic v. Commonwealth Transp. Cabinet, 334 S.W.3d 885, 2010 Ky. App. LEXIS 49 (Ky. Ct. App. 2010).

Pursuant to KRS 344.270 , defendants were entitled to summary judgment based on the election of remedies. Because plaintiff sought relief for the alleged violation of her civil rights from the Kentucky Commission on Human Rights (KCHR) and obtained a final determination from KCHR, plaintiff’s subsequent litigation in circuit court was barred. Burton v. Ky. State Police, 341 S.W.3d 589, 2011 Ky. App. LEXIS 58 (Ky. Ct. App. 2011).

5. Election of Remedies.

Former employee previously filed an administrative complaint alleging discrimination with a county human rights commission and the commission found no probable cause to believe that any violation of state anti-discrimination laws occurred; the district court properly ruled that the administrative decision had the effect of barring the employee’s state-law claims under election-of-remedies principles and his federal-law claims under the doctrine of administrative preclusion. Herrera v. Churchill McGee, 680 F.3d 539, 2012 FED App. 0137P, 2012 U.S. App. LEXIS 9818 (6th Cir. Ky.), cert. denied, 568 U.S. 1028, 133 S. Ct. 653, 184 L. Ed. 2d 460, 2012 U.S. LEXIS 9069 (U.S. 2012).

Court of appeals erred in affirming an order granting an employer summary judgment on an employee's claim for discriminatory employment practices on the ground the employee elected to pursue her remedy through the administrative process because due to the amendments to the Kentucky Civil Rights Act, the statute no longer barred claims filed in circuit court, despite final and appealable orders dismissing the same claim filed in the administrative agency. Owen v. Univ. of Ky., 486 S.W.3d 266, 2016 Ky. LEXIS 174 ( Ky. 2016 ).

Amendment includes qualifiers to open-ended terms under the original language of the statute, and the word “action” includes “administrative action,” and “proceeding” means proceeding brought in accordance with Ky. Rev. Stat. Ann, Chapter 13B; ny modifying both terms that could have covered claims filed in courts of law, there is nothing remaining in the statute to bar claims filed in circuit court, despite final and appealable orders dismissing the same claim filed in the administrative agency. Owen v. Univ. of Ky., 486 S.W.3d 266, 2016 Ky. LEXIS 174 ( Ky. 2016 ).

Supreme court's holding in Vaezkororti v. Domino's Pizza, Inc., 914 S.W.2d 341 ( Ky. 1995 ), and its progeny in the court of appeals cannot stand in wake of the changes to the Kentucky Civil Rights Act's text. Owen v. Univ. of Ky., 486 S.W.3d 266, 2016 Ky. LEXIS 174 ( Ky. 2016 ).

Notes to Unpublished Decisions

1. Circuit Court Action.

Unpublished decision: Where former employees filed an age discrimination complaint with the Kentucky Commission on Human Rights and then dismissed the complaint before filing a circuit court action, that court erred in dismissing the complaint under the election of remedies doctrine. Brown v. Diversified Decorative Plastics, LLC, 103 S.W.3d 108, 2003 Ky. App. LEXIS 71 (Ky. Ct. App. 2003).

Research References and Practice Aids

Northern Kentucky Law Review.

Burns & Fischesser, A Survey of Kentucky Employment Law., 31 N. Ky. L. Rev. 85 (2004).

344.280. Conspiracy to violate chapter unlawful.

It shall be an unlawful practice for a person, or for two (2) or more persons to conspire:

  1. To retaliate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this chapter, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this chapter; or
  2. To aid, abet, incite, compel, or coerce a person to engage in any of the acts or practices declared unlawful by this chapter; or
  3. To obstruct or prevent a person from complying with the provisions of this chapter or any order issued thereunder;
  4. To resist, prevent, impede, or interfere with the commission, or any of its members or representatives, in the lawful performance of duty under this chapter; or
  5. To coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by KRS 344.360 , 344.367 , 344.370 , 344.380 , or 344.680 .

History. Enact. Acts 1966, ch. 2, Art. 6, § 601; 1992, ch. 282, § 34, effective July 14, 1992.

NOTES TO DECISIONS

Analysis

  1. Construction of Words.
  2. Actual Embarrassment.
  3. Retaliation.
  4. Liability.
  5. Extraterritorial Application.
  6. Evidence.
  7. Jury Instructions.
1. Construction of Words.

Although KRS 344.280(1) uses the phrase “discriminate in any manner” and 42 USCS § 2000e-3 uses “discriminate against,” the Supreme Court of Kentucky concludes that there are no meaningful distinctions between the two (2) standards. Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 2004 Ky. LEXIS 14 ( Ky. 2004 ), modified, 2004 Ky. LEXIS 126 (Ky. May 20, 2004).

2. Actual Embarrassment.

Evidence supported finding of actual embarrassment on part of former employee in connection with employer’s suit, filed in retaliation for employee’s sex discrimination claim where employee testified people laughed at her, telling her that they knew “she was fighting a losing battle,” and she felt as if she had no justification for filing the discrimination case. Mountain Clay, Inc. v. Commonwealth, Com. on Human Rights, 830 S.W.2d 395, 1992 Ky. App. LEXIS 91 (Ky. Ct. App. 1992).

Former employee established (1) that she engaged in a protected activity by complaining of the use of a racial slur by her co-employee; (2) that her former employer knew of the activity; and (3) that she was subjected to tangible employment action when she was suspended and ultimately terminated by the employer; however, she did not establish a causal link between the protected activity and her suspension and termination because: (1) she was suspended and terminated approximately four (4) months after she complained to the employer of her co-employee’s use of a derogatory, racist term; (2) the employer presented evidence that she was reprimanded because she received a low score during an inspection; and (3) the employer provided affidavits from a deli clerk and another person who stated that the employee instructed her deli clerks to violate the employer’s policy on out-of-date products. Therefore, the employer was entitled to summary judgment on the employee’s retaliation complaint under KRS 344.280 . Jones v. Kroger, Inc., 2005 U.S. Dist. LEXIS 25566 (E.D. Ky. Oct. 27, 2005), aff'd, 2006 FED App. 0729N, 2006 U.S. App. LEXIS 25156 (6th Cir. Ky. Oct. 5, 2006).

Employee’s claims for intentional infliction of emotional distress were dismissed for failure to state a claim because she was prohibited from making a claim for intentional infliction of emotional distress for the same conduct that gave rise to her claims under the Kentucky Civil Rights Act (KCRA), KRS 344.040 . Banks v. Bosch Rexroth Corp., 2014 U.S. Dist. LEXIS 28043 (E.D. Ky. Mar. 5, 2014).

District court properly granted a former employer's motion to dismiss plaintiff's state law retaliation claim, as none of the alleged events, including complaints about her perfume by an unnamed person and being censured for failing to follow company protocols, constituted an adverse change in the terms and conditions of her employment. White v. Coventry Health & Life Ins. Co., 680 Fed. Appx. 410, 2017 FED App. 0126N, 2017 U.S. App. LEXIS 3430 (6th Cir. Ky. 2017 ).

3. Retaliation.

Plaintiff could maintain a cause of action against two individuals who, in alleged violation of this section, conspired to retaliate against her for filing a sexual discrimination lawsuit, even though KRS 344.990 makes a willful violation of this section a misdemeanor. Palmer v. International Ass'n of Machinists, 882 S.W.2d 117, 1994 Ky. LEXIS 54 ( Ky. 1994 ).

Because Kentucky prohibits retaliation by a “person,” liability for unlawful retaliation under this section does not depend on the person’s status as an “employer” under KRS 344.030(2). Lewis v. Quaker Chem. Corp., 2000 U.S. App. LEXIS 22321 (6th Cir. Ky. Aug. 24, 2000).

The defendant corporation was not entitled to judgment as a matter of law with regard to a claim of disability-based retaliation since (1) the plaintiff engaged in protected activity when he consulted with counsel concerning an age or disability suit, and the employer knew of his potential discrimination complaints, (2) the employer resented the claims of discrimination, viewed them as smoke screens to protect poor performance, and directly told the plaintiff to stop complaining about discrimination, and (3) the plaintiff’s low sales performance did not rebut the evidence of discrimination. Lewis v. Quaker Chem. Corp., 2000 U.S. App. LEXIS 22321 (6th Cir. Ky. Aug. 24, 2000).

In order to establish a prima facie case of retaliation, the plaintiff must show: (1) that he was engaged in a protected activity, (2) that he was subjected to adverse treatment by his employer, and (3) that there was a causal connection between the activity engaged in and the employer’s treatment of him. Kentucky Dep't of Corrections v. McCullough, 2000 Ky. App. LEXIS 57 (Ky. Ct. App. May 26, 2000), aff'd in part and rev'd in part, 123 S.W.3d 130, 2003 Ky. LEXIS 180 ( Ky. 2003 ).

Evidence was sufficient to establish retaliation where the evidence established (1) that the plaintiff unsuccessfully applied for a promotion on 26 separate occasions after filing an EEO complaint in 1987, (2) that she had more seniority and experience and that she was better qualified than the majority of the people who were promoted instead of her, (3) that some of the applicants promoted over her not only had less seniority but also had received written reprimands and some had been convicted of misdemeanors, (4) that she had never received a written reprimand nor been convicted of a crime, (5) that she consistently received high ratings on her job evaluations, and (6) that the primary reason relied upon by the defendants’ evidence as to why she was not promoted was that she did not “do well” in her interviews. Kentucky Dep't of Corrections v. McCullough, 2000 Ky. App. LEXIS 57 (Ky. Ct. App. May 26, 2000), aff'd in part and rev'd in part, 123 S.W.3d 130, 2003 Ky. LEXIS 180 ( Ky. 2003 ).

Filing a suit while settlement negotiations were going on did not amount to a violation of the statute and was not retaliatory in nature because declaratory judgments were widely used to establish certain fundamental rights in ongoing disputes. Bank One v. Murphy, 52 S.W.3d 540, 2001 Ky. LEXIS 140 ( Ky. 2001 ).

Material modification in duties and loss of prestige may rise to the level of adverse action for purposes of a retaliation claim; thus, where an employee testified that she was singled out from other employees and was required to ask permission from her immediate supervisor every time she left her desk, it was more than a de minimis employment action and it was sufficient evidence of adverse employment action to withstand a motion for a directed verdict because this change in the employee’s duties subjected her to greater supervisory scrutiny, carried an imputed diminished level of trust, and marked an objective decrease in prestige. Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 2004 Ky. LEXIS 14 ( Ky. 2004 ), modified, 2004 Ky. LEXIS 126 (Ky. May 20, 2004).

In cases where there is no direct evidence of a causal connection, the causal connection of a prima facie case of retaliation must be established through circumstantial evidence of a casual connection, which is evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action, and, in most cases, this requires proof that: (1) the decision maker responsible for making the adverse decision was aware of the protected activity at the time that the adverse decision was made; and (2) there is a close temporal relationship between the protected activity and the adverse action. Thus, in an employee’s retaliation action against a housing authority, the circumstantial evidence of a casual connection was sufficient to survive the housing authority’s motion for direct verdict where: (1) the housing authority was aware of the protected activity; (2) the change in the employee’s duties, which required her to ask for permission for any and all absences from her desk, and which was punitive in nature on its face, occurred very close in time with a scheduled visit by the Human Rights Commission officer assigned to investigate the employee’s complaint; and (3) there was additional testimony that the employee’s break time was arbitrarily reduced from 15 to ten (10) minutes immediately after the housing authority was served with the employee’s federal discrimination and retaliation complaint. Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 2004 Ky. LEXIS 14 ( Ky. 2004 ), modified, 2004 Ky. LEXIS 126 (Ky. May 20, 2004).

Employer was entitled to summary judgment on an employee’s claim of conspiracy under KRS 344.280 because the employee did not take any protected action and had not alleged any retaliation; furthermore, the employee presented no evidence beyond the allegations in the complaint, and a claim could not survive a summary judgment motion on this basis alone. Szabo v. UPS, Inc., 2004 U.S. Dist. LEXIS 10600 (W.D. Ky. May 24, 2004).

Where a former teacher alleged retaliation under KRS 344.280 after she alleged that she was fired for claiming that the renewal contract offered to her was unfair and illegal, and stating that she would be contacting an attorney, the allegations were sufficient to survive summary judgment because the teacher provided sufficient evidence from which a reasonable juror could conclude that the employer’s reason for terminating her was not her attitude and her failure to sign the contract, but was instead in retaliation for engaging in protected activity. Turner v. Sullivan Univ. Sys., 420 F. Supp. 2d 773, 2006 U.S. Dist. LEXIS 9580 (W.D. Ky. 2006 ).

Because employer terminated employee’s teaching contract due to misconduct, specifically that she threatened to kill nine middle school students if they continued to make fun of girls, not because she filed a complaint with the EEOC, her retaliation claim under KRS 344.280 is properly denied. Macy v. Hopkins County Bd. of Educ., 429 F. Supp. 2d 888, 2006 U.S. Dist. LEXIS 28035 (W.D. Ky. 2006 ), aff'd, 484 F.3d 357, 2007 FED App. 0133P, 2007 U.S. App. LEXIS 8382 (6th Cir. Ky. 2007 ).

Former employee’s claim of retaliation based on a report of sexual harassment was properly dismissed, because the employee never mentioned sexual harassment until after the claimed adverse action, the non-renewal of the employee’s contract, an act which was not an adverse action for purposes of a retaliation claim. McBrearty v. Ky. Cmty. & Tech. College Sys., 262 S.W.3d 205, 2008 Ky. App. LEXIS 265 (Ky. Ct. App. 2008).

A “Last Chance Agreement” (LCA) did not bar a former employee’s action under the Kentucky Civil Rights Act, KRS 344.280(1), which alleged retaliation by the employer for having filed an age discrimination claim with the Equal Employment Opportunity Commission; the waiver in the LCA left the employee with no forum to pursue his retaliatory discharge claim, and it was not a valid waiver under the United States Court of Appeals for the Sixth Circuit’s precedent. Hamilton v. GE, 556 F.3d 428, 2009 FED App. 0050P, 2009 U.S. App. LEXIS 2725 (6th Cir. Ky. 2009 ).

District court erred in granting summary judgment in favor of an employer in a former employee’s action under the Kentucky Civil Rights Act, KRS 344.280(1), which alleged retaliation by the employer for having filed an age discrimination claim with the Equal Employment Opportunity Commission (EEOC); the temporal proximity of the termination occurring less than three months after the EEOC filing, combined with the employee’s assertion that the employer increased its scrutiny of his work only after the EEOC complaint was filed, sufficiently established the causation element. Hamilton v. GE, 556 F.3d 428, 2009 FED App. 0050P, 2009 U.S. App. LEXIS 2725 (6th Cir. Ky. 2009 ).

District court erred in granting summary judgment in favor of an employer in a former employee’s action under the Kentucky Civil Rights Act, KRS 344.280(1), which alleged retaliation by the employer for having filed an age discrimination claim with the Equal Employment Opportunity Commission (EEOC); the employee raised a genuine issue as to pretext because he alleged facts under which a reasonable fact-finder could determine that the employer waited for and ultimately contrived a reason to terminate the employee to cloak its true, retaliatory motive for firing him. Hamilton v. GE, 556 F.3d 428, 2009 FED App. 0050P, 2009 U.S. App. LEXIS 2725 (6th Cir. Ky. 2009 ).

There was sufficient evidence of pretext for summary judgment purposes on the retaliation claim; while the employer presented evidence in support of its assertion that it treated the employee the same as other laborers subject-to-recall, the evidence when viewed in the light most favorable to the employee created a genuine issue of material fact on the issue of whether the employee delayed in recalling the employee in retaliation for the employee filing an Equal Employment Opportunity Commission complaint. Thomas v. Mech. Consultants, Inc., 655 F. Supp. 2d 756, 2009 U.S. Dist. LEXIS 65934 (W.D. Ky. 2009 ).

Claims of wrongful discharge, in violation of the public policy against perjury, were not preempted by civil rights claims arising from the same facts and asserting retaliation under KRS 344.280 for testifying in support of a civil rights complaint by a co-worker; the claims for wrongful discharge do not arise from and did not depend on the same laws as the civil rights claims. A claim of wrongful discharge for refusing to commit perjury does not depend upon the same public policy embodied in Kentucky's Civil Rights Act. Hill v. Ky. Lottery Corp., 2010 Ky. LEXIS 82 (Ky. Apr. 22, 2010), sub. op., 327 S.W.3d 412, 2010 Ky. LEXIS 317 ( Ky. 2010 ), modified, 2010 Ky. LEXIS 318 (Ky. Dec. 16, 2010).

Claims for wrongful discharge were viable, despite the fact that former employees also asserted a civil rights claim for retaliatory discharge; because the statutes that declared the unlawful act of perjury under KRS ch. 523 were not the same statutes that declared and remedied civil rights violations under KRS ch. 344, the claims under KRS ch. 344 did not preempt the common law claims for wrongful discharge based on the public policy against perjured testimony. Hill v. Ky. Lottery Corp., 327 S.W.3d 412, 2010 Ky. LEXIS 317 ( Ky. 2010 ).

Defendants were entitled to the retaliation claims under Title VII of the Civil Rights Act of 1964 and Kentucky’s Civil Rights Act where (1) defendants’ articulated basis, plaintiff’s tardiness and absenteeism, was a legitimate reason for limiting her overtime; and (2) plaintiff failed to show that the non-discriminatory reason for the decision to limit her overtime had no basis in fact, that it did not actually motivate the employer’s decision to terminate the employee, or that it was insufficient to motivate the decision to terminate the employee. Frentz v. City of Elizabethtown, 2010 U.S. Dist. LEXIS 118565 (W.D. Ky. Nov. 4, 2010).

Former bank employee’s retaliation claim against the head of consumer banking was dismissed where the complaint was devoid of any allegation that he retaliated against the employee after the employee reported discrimination to his supervisor. Adamov v. United States Bank Nat'l Ass'n, 776 F. Supp. 2d 447, 2011 U.S. Dist. LEXIS 22614 (W.D. Ky. 2011 ), rev'd, 726 F.3d 851, 2013 FED App. 221P, 2013 U.S. App. LEXIS 16677 (6th Cir. Ky. 2013 ).

Finding in favor of the employer on her retaliatory discharge claim was inappropriate pursuant to KRS 344.280(1) because she failed to prove a prima facie case of retaliation. She did not present any proof that the legitimate reasons articulated by her employer did not motivate its decision to terminate her contract and thus, even assuming she proved causation, she failed to present evidence to prove pretext. Univ. of Louisville Ath. Ass'n v. Banker, 2013 Ky. App. LEXIS 19 (Ky. Ct. App.), sub. op., 2013 Ky. App. Unpub. LEXIS 987 (Ky. Ct. App. Feb. 1, 2013).

Grant of summary judgment to the employer and Chief Executive Officer (CEO) on the retaliation claim under Title VII of the Civil Rights Act of 1964 or Kentucky’s anti-discrimination statute was appropriate because legitimate non-discriminatory reasons were offered by defendants for the employee’s termination—her in-office sex with the CEO and the ongoing office disruption resulting from the relationship. Stevens v. St. Elizabeth Med. Ctr., Inc., 533 Fed. Appx. 624, 2013 FED App. 0799N, 2013 U.S. App. LEXIS 18204 (6th Cir. Ky. 2013 ).

Former employee’s retaliation claim failed because before the employee filed a report with human resources, the employee had already been issued a final warning and an amended final warning, and these warnings explicitly stated that the employee’s failure to comply could lead to the employee’s termination. Montell v. Diversified Clinical Servs., 969 F. Supp. 2d 798, 2013 U.S. Dist. LEXIS 120598 (E.D. Ky. 2013 ), aff'd in part and rev'd in part, 757 F.3d 497, 2014 FED App. 0135P, 2014 U.S. App. LEXIS 12125 (6th Cir. Ky. 2014 ).

Summary judgment was properly granted to a college and its officials on a professor’s retaliation claim because the statements he provided were subject to a variety of interpretations, he failed to show direct evidence of retaliatory animus, and the close temporal proximity of the professor’s actions to the adverse employment decisions did not raise an inference of causation. Charalambakis v. Asbury College, 2014 Ky. App. LEXIS 16 (Ky. Ct. App.), op. withdrawn, 2014 Ky. App. Unpub. LEXIS 831 (Ky. Ct. App. Jan. 31, 2014).

Retaliation claims asserted against five individual employees were not dismissed because they fit the definition of persons under the Kentucky Civil Rights Act, KRS 344.010(1), and the Act permitted claims against individuals when retaliation was asserted. Banks v. Bosch Rexroth Corp., 2014 U.S. Dist. LEXIS 28043 (E.D. Ky. Mar. 5, 2014).

It was error to, sua sponte, invoke the futile-gesture doctrine to save an employee's employment discrimination retaliation claim, when the employee had not applied for a job, because the doctrine had not been raised, so the employer had no chance to respond, nor could the trial court rule on the issue. Norton Healthcare, Inc. v. Lual Deng, 487 S.W.3d 846, 2016 Ky. LEXIS 116 ( Ky. 2016 ).

Employee showed no prima facie case of retaliation because the employee showed no adverse employment action, as (1) the employee never submitted a job application, (2) the futile-gesture doctrine did not apply, as the doctrine was not raised, (3) the employee's prior lawsuit against the employer did not “obligate” the employer to consider the employee for employment, and (4) the employee expressed no continued interest in employment when the employee did not specify a particular vacancy. Norton Healthcare, Inc. v. Lual Deng, 487 S.W.3d 846, 2016 Ky. LEXIS 116 ( Ky. 2016 ).

Former employee's retaliation claim did not fail because the employer was not found to have discriminated in the direct claim. Asbury Univ. v. Powell, 486 S.W.3d 246, 2016 Ky. LEXIS 100 ( Ky. 2016 ).

Retaliation claim under this section requires “but-for” causation, and thus, the standard for whether retaliation occurred was whether the retaliatory conduct would have occurred “but-for” the former employee's engaging in protected complaints of discrimination. Asbury Univ. v. Powell, 486 S.W.3d 246, 2016 Ky. LEXIS 100 ( Ky. 2016 ).

Employee's complaints, encompassing what she perceived to be sex-based discrepancies in the terms and conditions of her employment as a head coach and intramural sports coordinator, involved sex-based employment discrimination made unlawful under Ky. Rev. Stat. Ann. § 344.040 (a), and, as such, were protected activities under this section. Asbury Univ. v. Powell, 486 S.W.3d 246, 2016 Ky. LEXIS 100 ( Ky. 2016 ).

Circuit court properly granted summary judgment in favor of an employer on an employee's claims of racial discrimination and retaliation because counsel's blanket citation was inadequate, the employee's 1989, 1990, and 2001 claims were untimely where they were “discrete acts” that were distinct in time and in circumstance, the employee failed to raise a genuine issue of fact as to whether the employer's reasons were pretextual, the employee's retaliation claim did not show but-for causation, and his evidence was inadmissible hearsay. Walker v. Ky. Educ. TV, 503 S.W.3d 165, 2016 Ky. App. LEXIS 46 (Ky. Ct. App. 2016).

Employee's allegation that he brought a complaint against his former superior for making abusive remarks did not constitute protected activity that could support his claim for retaliation; the employee also failed to state a claim for hostile-work-environment, because he failed to allege that the harassment he endured stemmed from a protected activity under the Kentucky Civil Rights Act. Krueger v. Home Depot USA, Inc., 674 Fed. Appx. 490, 2017 FED App. 0002N, 2017 U.S. App. LEXIS 221 (6th Cir. Ky. 2017 ) (Jan. 3, 2017).

District court properly granted a former employer's motion to dismiss plaintiff's state law retaliation claim, as none of the alleged events, including complaints about her perfume by an unnamed person and being censured for failing to follow company protocols, constituted an adverse change in the terms and conditions of her employment. White v. Coventry Health & Life Ins. Co., 680 Fed. Appx. 410, 2017 FED App. 0126N, 2017 U.S. App. LEXIS 3430 (6th Cir. Ky. 2017 ).

Summary judgment was improperly granted to a university and its officials on a retaliation claim where a supervisor's testimony of pressure to find a reason to terminate the employee and the university's knowledge of the employee's grievance raised an inference that the grievance was the reason for her firing, and the supervisor's verified statements suggested that the performance deficiencies were simply used as a pretext to justify terminating the employee. Lindsey v. Bd. of Trs. of the Univ. of Ky., 552 S.W.3d 77, 2018 Ky. App. LEXIS 74 (Ky. Ct. App. 2018).

In Kentucky, the Kentucky Commission on Human Rights must be involved even if only through an inquiry about filing a charge to invoke statutory protection under the participation clause of Ky. Rev. Stat. Ann. § 344.280(1). Williams v. City of Glasgow, 2018 Ky. App. LEXIS 221 (Ky. Ct. App. Aug. 10, 2018), review denied, ordered not published, 2019 Ky. LEXIS 339 (Ky. Aug. 21, 2019).

Summary judgment on an employee’s claims under the participation clause was proper where any alleged investigation was internal in nature and confined within the police department, and no action was made or contemplated involving the Kentucky Commission on Human Rights. Williams v. City of Glasgow, 2018 Ky. App. LEXIS 221 (Ky. Ct. App. Aug. 10, 2018), review denied, ordered not published, 2019 Ky. LEXIS 339 (Ky. Aug. 21, 2019).

Nurse’s intentional infliction of emotional distress (IIED) claim against the doctor was subsumed by her claim for retaliation; although the nurse sued the doctor, individually, for both retaliation and IIED, she had to choose her avenue for recovery against him, and she could not recover under both claims against the same defendant. Smith v. Lewis, 2019 Ky. App. LEXIS 115 (Ky. Ct. App.), sub. op., 2019 Ky. App. Unpub. LEXIS 903 (Ky. Ct. App. July 5, 2019), review denied, ordered not published, 2019 Ky. LEXIS 489 (Ky. Dec. 13, 2019).

Trial court correctly held that the nurse did not need to prove that the doctor and his office had eight or more employees for the jury to decide the retaliation claim; retaliation is not confined by the “employer” definition, and instead, the retaliation statute permits a “person” to be individually liable for retaliation. Smith v. Lewis, 2019 Ky. App. LEXIS 115 (Ky. Ct. App.), sub. op., 2019 Ky. App. Unpub. LEXIS 903 (Ky. Ct. App. July 5, 2019), review denied, ordered not published, 2019 Ky. LEXIS 489 (Ky. Dec. 13, 2019).

Kentucky’s retaliation statute is not the same as the federal retaliation statute; while Kentucky’s Civil Rights Act was based on the Federal Civil Rights Act, it does not mirror it: Title VII forbids retaliation by an “employer,” while Kentucky law forbids retaliation by a “person.” Smith v. Lewis, 2019 Ky. App. LEXIS 115 (July 5, 2019).

Doctor was a “person,” as was the doctor’s professional limited liability company because a corporation was included within the definition of a “person;” therefore, Kentucky permited “persons,” like the doctor and the company, to be held liable for retaliation. Smith v. Lewis, 2019 Ky. App. LEXIS 115 (Ky. Ct. App.), sub. op., 2019 Ky. App. Unpub. LEXIS 903 (Ky. Ct. App. July 5, 2019), review denied, ordered not published, 2019 Ky. LEXIS 489 (Ky. Dec. 13, 2019).

Nurse was presumed to have acted in good faith in pursuing her civil rights claims against the doctor and his professional limited liability company. Smith v. Lewis, 2019 Ky. App. LEXIS 115 (Ky. Ct. App.), sub. op., 2019 Ky. App. Unpub. LEXIS 903 (Ky. Ct. App. July 5, 2019), review denied, ordered not published, 2019 Ky. LEXIS 489 (Ky. Dec. 13, 2019).

Jury determined both the doctor and his professional limited liability company retaliated against the nurse, finding the doctor responsible for $50,000 in embarrassment and humiliation damages and the company responsible for $26,474.43 in lost wages; the retaliation claim against both the doctor and the office was proper as they were both “persons.” Smith v. Lewis, 2019 Ky. App. LEXIS 115 (July 5, 2019).

As the retaliation claim judgment was affirmed, the attorney fees and costs award based on the retaliation claim was also affirmed. Smith v. Lewis, 2019 Ky. App. LEXIS 115 (Ky. Ct. App.), sub. op., 2019 Ky. App. Unpub. LEXIS 903 (Ky. Ct. App. July 5, 2019), review denied, ordered not published, 2019 Ky. LEXIS 489 (Ky. Dec. 13, 2019).

Trial court properly denied defendant’s motion for a directed verdict on plaintiff’s retaliation claim, as she presented sufficient evidence from which a jury could conclude that she suffered some adverse employment action; even if a required counseling session was not sufficient to count as an adverse action, there remained the larger question of whether plaintiff resigned or was terminated, and there was conflicting evidence of causation. Louisville Metro Gov't v. Ward, 2020 Ky. App. LEXIS 41 (Ky. Ct. App. Apr. 10, 2020).

4. Liability.

The language of this section forbids retaliation by “a person,” and therefore plainly permits the imposition of liability on individuals. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 2000 FED App. 0032P, 2000 U.S. App. LEXIS 734 (6th Cir. Ky. 2000 ).

Claims for retaliation for pursuing an allegation of racial discrimination in employment are subject to the “ultimate employment decision” standard, requiring proof that the retaliatory conduct of the employer altered the employee’s compensation, terms, conditions, or privileges of employment, deprived the employee of employment opportunities, or adversely affected the employee’s status as an employee. Lexington-Fayette Urban County Hous. Auth. v. Brooks, 2001 Ky. App. LEXIS 699 (Ky. Ct. App. June 22, 2001), modified, 2001 Ky. App. LEXIS 770 (Ky. Ct. App. Sept. 7, 2001), aff'd in part and rev'd in part, 132 S.W.3d 790, 2004 Ky. LEXIS 14 ( Ky. 2004 ).

5. Extraterritorial Application.

In an employee’s action under KRS 344.280 alleging that her former employer and supervisors retaliated against her for reporting sexual harassment, the court held that the Kentucky Civil Rights Act (KCRA) did not provide the employee with a remedy for any retaliation she suffered in Florida because the Kentucky Supreme Court’s analysis in Union Underwear Co. v. Barnhart, 50 S.W.3d 188, 2001 Ky. LEXIS 82 ( Ky. 2001 ), suggested that the Kentucky Supreme Court had made a policy decision, based on a combination of interstate comity and a desire to avoid choice-of-law difficulties, not to apply the KCRA to employment situations that might arguably create a conflict with the laws of other states. In particular, the analysis suggests that the KCRA is inapplicable to injuries that occur outside of Kentucky’s borders, regardless of whether the action causing the relevant injury takes place within Kentucky. Ferrer v. Medastat USA, LLC, 145 Fed. Appx. 116, 2005 FED App. 0659N, 2005 U.S. App. LEXIS 16099 (6th Cir. Ky. 2005 ).

6. Evidence.

Employer’s motion for summary judgment against an employee’s claims for damages for alleged violations of KRS 344.040 and KRS 337.423 was properly granted, as: (1) there was not sufficient prima facie evidence to support the constructive discharge, gender discrimination, and retaliation claims; (2) an equal pay claim was time-barred; and (3) a sexual orientation claim was filed in the wrong forum, since the county human rights commission had jurisdiction over that claim. Crockett v. CHA HMO, Inc., 2008 Ky. App. LEXIS 103 (Ky. Ct. App. Apr. 4, 2008), review denied, ordered not published, 2009 Ky. LEXIS 262 (Ky. May 13, 2009).

Where former university employee alleged retaliatory termination, she did not show that she engaged in protected activities with regard to other persons' grievances beyond her regular job duties in human resources department. Lewis-Smith v. W. Ky. Univ., 85 F. Supp. 3d 885, 2015 U.S. Dist. LEXIS 2312 (W.D. Ky. 2015 ).

Where former university employee alleged retaliatory termination, and where she did not show that she engaged in protected activities, in any event, fact that employee was terminated four months after she allegedly engaged in protected activity was insufficient to show causation because she presented no other evidence of retaliatory conduct and employee's insulting comments to her supervisor week before decision to terminate her was made, reports regarding employee's performance issues, and supervisor's own observations, constituted intervening legitimate reason for termination, which dispelled any inference of retaliation based on temporal proximity. Lewis-Smith v. W. Ky. Univ., 85 F. Supp. 3d 885, 2015 U.S. Dist. LEXIS 2312 (W.D. Ky. 2015 ).

7. Jury Instructions.

In a retaliation case, a trial court did not err in instructing the jury that it must find that but for the employee’s filing of a discrimination grievance, she would not have been discharged. The trial court correctly rejected the employee’s submitted instruction that the filing of the grievance be a substantial and motivating factor in her discharge. Plucinski v. Cmty. Action Council, 2012 Ky. App. LEXIS 60 (Ky. Ct. App.), sub. op., 2012 Ky. App. Unpub. LEXIS 1012 (Ky. Ct. App. Apr. 6, 2012), review denied, ordered not published, 2013 Ky. LEXIS 204 (Ky. Feb. 13, 2013).

Even if the trial court erred by including a co-worker’s name among the list of potential retaliators in its jury instructions for the employee’s retaliation claim, the error was harmless because use of the word “or” rendered it unnecessary for the jury to make any finding that the co-worker specifically knew of the employee’s protected conduct in complaining about her former supervisor’s alleged harassment or gender discrimination, or that the co-worker made the decision to terminate the employee in retaliation for this protected conduct. Norton Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696, 2020 Ky. LEXIS 180 ( Ky. 2020 ).

Cited:

Lexington-Fayette Urban County Hous. Auth. v. Brooks, 2001 Ky. App. LEXIS 699 (Ky. Ct. App. 2001), aff’d in part, rev’d in part, 132 S.W.3d 790, 2004 Ky. LEXIS 14 ( Ky. 2004 ).

Notes to Unpublished Decisions

1. Retaliation.

Unpublished decision: District court properly granted summary judgment under Fed. R. Civ. P. 56 in favor of an employer in an action by two former employees alleging retaliation in violation of KRS 344.280(1) of the Kentucky Civil Rights Act, KRS 344.010 et seq.; although the appeals court assumed that the male assistant and his female supervisor established a prima facie case after showing that their job duties were diminished when they reported that a new manager made a homosexual advance to the male assistant, a jury would not have been entitled to infer from the evidence that the employer’s explanation of a routine realignment of work responsibilities following a change in control of the company was a pretext. The timing of the adverse employment actions was no more suggestive of retaliation than it was of a lawful effort to revamp the newly-acquired business. Curtis v. Hanger Prosthetics & Orthotics, Inc., 101 Fed. Appx. 61, 2004 U.S. App. LEXIS 11254 (6th Cir. Ky. 2004 ).

Unpublished decision: Claims of retaliation under KRS 344.280(1) of the Kentucky Civil Rights Act, KRS 344.010 et seq., are analyzed in the same way as retaliation claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq. Curtis v. Hanger Prosthetics & Orthotics, Inc., 101 Fed. Appx. 61, 2004 U.S. App. LEXIS 11254 (6th Cir. Ky. 2004 ).

Opinions of Attorney General.

The General Assembly has delegated the authority to city and counties “to create rights to be free from discriminatory or biased conduct;” Lousiville Ordinance No. 281 does not conflict with this chapter because this chapter expressly grants to cities and counties the authority to adopt and enforce ordinances prohibiting “all forms of discrimination.” OAG 92-68 .

Research References and Practice Aids

Kentucky Bench & Bar.

Simon, Blowing the Whistle in the Commonwealth, Vol. 74, No. 4, July 2010, Ky. Bench & Bar 28.

Northern Kentucky Law Review.

Hawkins and MacGillivray, A Summary of Kentucky Employment Law Decisions, 21 N. Ky. L. Rev. 357 (1994).

Burns & Fischesser, A Survey of Kentucky Employment Law., 31 N. Ky. L. Rev. 85 (2004).

Richey & Isenhath, How Recent Kentucky Courts are Applying the Retaliation Claim in Employment Cases., 33 N. Ky. L. Rev. 283 (2006).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.290. Conciliation agreements, violation unlawful.

It is an unlawful practice for a party to a conciliation agreement made pursuant to subsection (4) of KRS 344.200 to violate the terms of the agreement.

History. Enact. Acts 1966, ch. 2, Art. 6, § 603.

344.300. Authorization of cities and counties to prohibit discrimination.

  1. Cities and counties are authorized to adopt and enforce ordinances, orders, and resolutions prohibiting all forms of discrimination, including discrimination on the basis of race, color, religion, disability, familial status, or national origin, sex, or age, and to prescribe penalties for violations thereof, such penalties being in addition to the remedial orders and enforcement herein authorized.
  2. Cities and counties may adopt and enforce ordinances, orders, and resolutions prohibiting discrimination; no ordinance, order or resolution shall attempt to exempt more transactions from its coverage than are exempted by KRS 344.362 and 344.365 .

History. Enact. Acts 1966, ch. 2, Art. 7, § 701; 1968, ch. 167, § 12; 1974, ch. 104, § 3; 1976, ch. 311, § 3; 1992, ch. 282, § 35, effective July 14, 1992.

Opinions of Attorney General.

This section would be unconstitutional to the extent it is a delegation of legislative power to the fiscal courts. OAG 77-619 .

The General Assembly has delegated authority to cities and counties “to create rights to be free from discriminitory or biased conduct;” Louisville Ordinance No. 281 does not conflict with this chapter, because this chapter expressly grants to cities and counties the authority to adopt and enforce ordinances prohibiting “all forms of discrimination.” OAG 92-68 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination, § 308.00.

344.310. Local human rights commissions.

Any city or county, or one (1) or more cities and counties acting jointly, may create a human rights commission (hereinafter a “local commission”):

  1. To provide for execution within its jurisdiction of the policies embodied in this chapter and the Federal Civil Rights Act of 1964 (78 Stat. 241); and
  2. To safeguard all individuals within its jurisdiction from discrimination because of race, color, religion, or national origin, sex, or age.

History. Enact. Acts 1966, ch. 2, Art. 7, § 702; 1974, ch. 104, § 4.

NOTES TO DECISIONS

1. Federal Jurisdiction of Claim.

Where plaintiff had filed a claim before the county human rights commission for relief from the failure of the Cabinet for Human Resources to promote him, plaintiff properly exhausted his state remedies and thus the federal district court had jurisdiction over plaintiff’s employment discrimination claim. Crutcher v. Kentucky, 495 F. Supp. 603, 1980 U.S. Dist. LEXIS 14973 (E.D. Ky. 1980 ).

Two jurisdictional prerequisites to filing a federal suit under 42 USCS § 2000e for racially discriminatory practices in employment are filing a claim with the Equal Employment Opportunity Commission and receipt of a notice of right to sue; however, the letters from the EEOC granting the right to sue are not conclusive proof of the federal district court’s jurisdiction, and where a state agency exists which may grant relief to a plaintiff, no claim may be made to the EEOC until 60 days after the commencement of proceedings before that state agency, unless such proceedings are terminated before the passing of 60 days. Crutcher v. Kentucky, 495 F. Supp. 603, 1980 U.S. Dist. LEXIS 14973 (E.D. Ky. 1980 ).

Cited:

Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 1972 U.S. App. LEXIS 7954 (6th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 589, 1973 U.S. LEXIS 3345 (1973).

Opinions of Attorney General.

A reasonable interpretation of this section indicates that the mere creation of the joint commission was sufficient to authorize the human relations commission to deal with complaints relating to the state open-housing law within the city of Louisville and also within the unincorporated portions of Jefferson County. OAG 70-148 .

Whether fifth and sixth-class cities within Jefferson County establish their own human relations commissions or not, the Louisville and Jefferson County human relations commission’s jurisdiction to deal with complaints relating to the state open-housing law extends only to the city of Louisville and the unincorporated areas of Jefferson County. OAG 70-179 .

A local human rights commission is authorized to handle complaints against the state or its agencies under this section and KRS 344.010 , which provides that the Commonwealth is to be treated as a person rather than as a sovereign. OAG 75-669 .

The joint city-county human rights commission, established pursuant to this section, would be considered a hybrid agency which means that it is neither a city, county nor state agency as such but which contains elements of all three. OAG 79-483 .

A local human rights commission is a public agency operating under the authority of the laws of the Commonwealth of Kentucky. OAG 79-608 .

Since the Kentucky Commission on Human Rights has 706 deferral status, under 45 Federal Register No. 99, which enables the Federal Equal Employment Opportunity Commission to defer its jurisdiction over employment discrimination complaints to the Commission, and, in particular, since 706 deferral status by a local human rights commission would be consonant with the purposes of this section and the whole of KRS Chapter 344, such 706 deferral status for the local human rights commission would not conflict with state and/or local laws. OAG 80-407 .

The Fayette Urban County Government Human Rights Commission is fully authorized to handle complaints against the state or its agencies concerning civil rights violations in Fayette County even though the complaining employee is a merit employee of the state or its agencies. OAG 83-482 .

A city-county human rights commission created under this section is a “public agency” as that term is defined in the Open Records Law, KRS 61.870(1). OAG 84-376 .

A city-county human rights commission cannot rely upon local ordinances and resolutions to deny a request to inspect public records, if such records are open to public inspection under the State Open Records Law. OAG 84-376 .

344.320. Powers of local commissions.

A local commission may be authorized to:

  1. Receive, initiate, investigate, hear, and determine charges of violations of ordinances, orders, or resolutions forbidding discrimination adopted by the city or county.
  2. Compel the attendance of witnesses and the production of evidence before it by subpoena issued by the Circuit Court of the county wherein the local commission is authorized to act.
  3. Issue remedial orders, after notice and hearing, requiring cessation of violations.
  4. Issue such affirmative orders as in the judgment of the local commission will carry out the purposes of this chapter. Affirmative action ordered may include but is not limited to the remedies enumerated in subsection (3) of KRS 344.230 .
  5. Employ an executive director, attorneys, hearing examiners, clerks and other employees and agents.
  6. Accept grants, gifts, or bequests, public or private to help finance its activities.

History. Enact. Acts 1966, ch. 2, Art. 7, § 703.

NOTES TO DECISIONS

1. Federal Jurisdiction of Claim.

Where plaintiff had filed a claim before the county human rights commission for relief from the failure of the Cabinet for Human Resources to promote him, plaintiff properly exhausted his state remedies and thus the federal district court had jurisdiction over plaintiff’s employment discrimination claim. Crutcher v. Kentucky, 495 F. Supp. 603, 1980 U.S. Dist. LEXIS 14973 (E.D. Ky. 1980 ).

Two jurisdictional prerequisites to filing a federal suit under 42 USCS § 2000e for racially discriminatory practices in employment are filing a claim with the Equal Employment Opportunity Commission and receipt of a notice of right to sue; however, the letters from the EEOC granting the right to sue are not conclusive proof of the federal district court’s jurisdiction, and where a state agency exists which may grant relief to a plaintiff, no claim may be made to the EEOC until 60 days after the commencement of proceedings before that state agency, unless such proceedings are terminated before the passing of 60 days. Crutcher v. Kentucky, 495 F. Supp. 603, 1980 U.S. Dist. LEXIS 14973 (E.D. Ky. 1980 ).

344.330. Additional powers of local commissions.

A local commission established pursuant to this chapter may:

  1. Enter into cooperative working agreements with the United States Equal Employment Opportunity Commission created by Section 705 of the Federal Civil Rights Act of 1964 (78 Stat. 241) in order to achieve the purposes of that act; and with any federal or state agency in order to achieve the purposes of this chapter.
  2. In its discretion, or upon request of the commission, refer a matter under its jurisdiction to the commission for initial action or review.
  3. Refer to the commission for resolution a dispute over jurisdiction or other matter with another local commission.
  4. Provide a copy of its annual report to the commission.

History. Enact. Acts 1966, ch. 2, Art. 7, § 705.

Compiler’s Notes.

Section 705 of the Federal Civil Rights Act of 1964 is compiled as 42 USCS § 2000e-4.

344.340. Enforcement of local commission orders.

The proceeding for enforcement of a local commission order is initiated by filing a complaint in the Circuit Court. Copies of the complaint shall be served upon all parties of record. Within thirty (30) days after the filing of the complaint by the local commission, or within such further time as the court may allow, the local commission shall transmit to the court the original or a certified copy of the entire record upon which the order is based, including a transcript of testimony, which need not be printed. By stipulation of all parties to the proceeding, the record may be shortened. The findings of fact of the local commission shall be conclusive unless clearly erroneous in view of the probative and substantial evidence on the whole record. The court shall have power to grant such temporary relief or restraining order as it deems just, and to enter an order enforcing, modifying and enforcing as modified, or setting aside in whole or in part the order of the local commission, or remanding the case to the local commission for further proceedings.

History. Enact. Acts 1966, ch. 2, Art. 7, § 704; 1976, ch. 62, § 121.

344.350. Cooperation between state and local commissions.

The commission may enter into cooperative working agreements with local commissions which have enforceable ordinances, orders, or resolutions and professional staff under the provisions of KRS 344.320 .

History. Enact. Acts 1966, ch. 2, Art. 7, § 706.

344.360. Unlawful housing practices — Design and construction requirements.

It is an unlawful housing practice for a real estate operator, or for a real estate broker, real estate salesman, or any person employed by or acting on behalf of any of these:

  1. To refuse to sell, exchange, rent, or lease, or otherwise deny to or withhold, real property from any person because of race, color, religion, sex, familial status, disability, or national origin;
  2. To discriminate against any person because of race, color, religion, sex, familial status, disability, or national origin in the terms, conditions, or privileges of the sale, exchange, rental, or lease of real property or in the furnishing of facilities or services in connection therewith;
  3. To refuse to receive or transmit a bona fide offer to purchase, rent, or lease real property from any person because of race, color, religion, sex, familial status, disability, or national origin;
  4. To refuse to negotiate for the sale, rental, or lease of real property to any person because of race, color, religion, sex, familial status, disability, or national origin;
  5. To represent to any person that real property is not available for inspection, sale, rental, or lease when it is so available, or to refuse to permit any person to inspect real property because of his race, color, religion, sex, familial status, disability, or national origin;
  6. To make, print, circulate, post, or mail or cause to be printed, circulated, posted, or mailed an advertisement or sign, or to use a form of application for the purchase, rental, or lease of real property, or to make a record of inquiry in connection with the prospective purchase, rental, or lease of real property, which indicates, directly or indirectly, a limitation, specification, or discrimination as to race, color, religion, sex, familial status, disability, or national origin or an intent to make such a limitation, specification, or discrimination;
  7. To offer, solicit, accept, use, or retain a listing of real property for sale, rental, or lease with the understanding that any person may be discriminated against in the sale, rental, or lease of that real property or in the furnishing of facilities or services in connection therewith because of his race, color, religion, sex, familial status, disability, or national origin;
  8. To otherwise deny to or withhold real property from any person because of his race, color, religion, sex, familial status, disability, or national origin;
  9. To discriminate in the sale or rental, or to otherwise make unavailable or deny, a housing accommodation to any buyer or renter because of a disability of:
    1. That buyer or renter;
    2. A person residing in or intending to reside in that housing accommodation after it is so sold, rented, or made available; or
    3. Any person associated with that buyer or renter; or
  10. To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such housing accommodation, because of a disability of:
    1. That person; or
    2. A person residing in or intending to reside in that housing accommodation after it is sold, rented, or made available; or
    3. Any person associated with that person.
  11. For purposes of this section, discrimination includes:
    1. A refusal to permit, at the expense of the disabled person, reasonable modifications of existing premises occupied or to be occupied by a person, if the modifications may be necessary to afford the person full enjoyment of the premises; except that, in the case of a rental, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.
    2. A refusal to make reasonable accommodations in rules, policies, practices, or services, when the accommodations may be necessary to afford the person equal opportunity to use and enjoy a housing accommodation; or
    3. In connection with the design and construction of covered multifamily housing accommodations for first occupancy after January 1, 1993, a failure to design and construct those housing accommodations in a manner ensuring that they have at least one (1) entrance on an accessible route unless impractical to do so because of the terrain or unusual characteristics of the site. Housing accommodations with a building entrance on an accessible route shall comply with the following requirements:
      1. The public use and common use portions of the housing accommodations shall be readily accessible to and usable by disabled persons;
      2. All the doors designed to allow passage into and within all premises within the housing accommodations shall be sufficiently wide to allow passage by disabled persons in wheelchairs; and
      3. All premises within the housing accommodations shall contain the following features of adaptive design:
        1. An accessible route into and through the housing accommodation;
        2. Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
        3. Reinforcements in bathroom walls to allow later installation of grab bars; and
        4. Usable kitchens and bathrooms so that an individual in a wheelchair can maneuver about the space.
  12. Compliance with the appropriate requirements of the American National Standard for buildings and facilities providing accessibility and usability for physically disabled persons, (commonly cited as “ANSI A117.1 - 1986”) suffices to satisfy the requirements of subsection (11)(c)3. of this section.
  13. As used in subsection (11) of this section, the term “covered multifamily housing accommodation” means:
    1. Buildings consisting of four (4) or more units if the buildings have one (1) or more elevators; and
    2. Ground floor units in other buildings consisting of two (2) or more units.
  14. Nothing in this section requires that a housing accommodation be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.

History. Enact. Acts 1968, ch. 167, § 3; 1972, ch. 255, § 12; 1992, ch. 282, § 36, effective July 14, 1992; 1994, ch. 405, § 87, effective July 15, 1994.

NOTES TO DECISIONS

1. Racial Discrimination.

Racial discrimination may be shown by proof of either discriminatory purpose or discriminatory effect; actual intent or malevolent motive need not be proven. Middlesboro Housing Authority v. Kentucky Com. on Human Rights, 553 S.W.2d 57, 1977 Ky. App. LEXIS 737 (Ky. Ct. App. 1977).

Mere segregation is not unlawful or discriminatory, but practices and procedures which tend to perpetuate segregation in public housing are unlawful. Middlesboro Housing Authority v. Kentucky Com. on Human Rights, 553 S.W.2d 57, 1977 Ky. App. LEXIS 737 (Ky. Ct. App. 1977).

Realtor engaged in unlawful housing practices by explaining to a black couple that a house which they sought to rent was only for sale, where a white woman was shown the same house by the same realtor and was told that she could lease the house for six months, and where the house was in fact rented to a white male on a six-month lease with no obligation that he purchase the property. Kentucky Com. on Human Rights v. Ken Morris Realty Co., 775 S.W.2d 947, 1989 Ky. App. LEXIS 112 (Ky. Ct. App. 1989).

Opinions of Attorney General.

This section applies not only to residential property but to commercial properties as well, notwithstanding that the title of the section has been designated as “Unlawful housing practices,” since KRS 446.140 states that the title is generally not part of the law and a reading of the section makes its intent clear. OAG 70-148 .

Research References and Practice Aids

Kentucky Bench & Bar.

Schwemm, Kentucky Is a Leader in Fair Housing Enforcement, Volume 52, No. 4, Fall 1988 Ky. Bench & B. 26.

Kentucky Law Journal.

Article: Overcoming Structural Barriers to Integrated Housing: A Back-to-the-Future Reflection on the Fair Housing Act’s “Affirmatively Further” Mandate, 100 Ky. L.J. 125 (2011/2012).

Northern Kentucky Law Review.

Bales and Korb, A Survey of Kentucky Employment Compensation Law: A Look At Employment Discrimination Claims Brought Under the Kentucky Civil Rights Act, 30 N. Ky. L. Rev. 71 (2003).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer to Claim Based on Violation of KRS 344.360 , Claiming Exemptions Under KRS 344.362 , § 308.03.

Caldwell’s Kentucky Form Book, 5th Ed., Answer to Claim Based on Violation of KRS 344.360 , Claiming Exemptions Under KRS 344.365 , § 308.04.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Independent Action under KRS 344.650 , Alleging Violation of KRS 344.36, § 308.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

Caldwell’s Kentucky Form Book, 5th Ed., Synopsis to Chapter 308 Housing Discrimination Complaints, § 308.syn.

ALR

Validity and construction of anti-blockbusting regulations as designated to prevent brokers from inducing sales of realty because of actual or rumored entry of racial group in neighborhood. 34 A.L.R.3d 1432.

Suspension or revocation of real estate broker’s license on ground of discrimination. 42 A.L.R.3d 1099.

Prohibition, under state civil rights laws, of racial discrimination in rental of privately owned residential property. 96 A.L.R.3d 497.

Relief under Federal Civil Rights Act of 1871 (42 USCS § 1983) against denial of building permit or zoning change for privately sponsored low- or moderate-income housing projects on grounds of racial discrimination. 12 A.L.R. Fed. 964.

What constitutes “pattern or practice” of racial discrimination in sale or rental of housing within meaning of provision of Fair Housing Act of 1968 (42 USCS § 3613) authorizing Attorney General to bring civil action for preventive relief against such conduct. 13 A.L.R. Fed. 285.

344.362. Exceptions to unlawful practice of discrimination because of sex.

Nothing in KRS 344.360 shall apply to:

  1. The YMCA, YWCA, and similar type single sex dormitory rental properties, including, but not limited to, those dormitories operated by institutions of higher education;
  2. A landlord who refused to rent to an unmarried couple of opposite sex;
  3. A landlord who chooses to rent only to men or only to women; provided that the landlord engages in the rental to no more than ten (10) persons or of no more than ten (10) self-contained units in an owner occupied housing accommodation;
  4. Rooms or rental units where tenants would be required to share common bath or kitchen facilities; and
  5. To any housing accommodation where it can be demonstrated that gender-based exclusions are necessary for reasons of personal modesty or privacy.

History. Enact. Acts 1980, ch. 245, § 10, effective July 15, 1980; 1992, ch. 282, § 37, effective July 14, 1992.

Research References and Practice Aids

Northern Kentucky Law Review.

General Law Issue: Article: De-Clothing Sex-Based Classifications - Same-Sex Marriage is Just the Beginning: Achieving Formal Sex Equality in the Modern Era, 36 N. Ky. L. Rev. 1 (2009).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer to Claim Based on Violation of KRS 344.360 , Claiming Exemptions Under KRS 344.362 , § 308.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

Caldwell’s Kentucky Form Book, 5th Ed., Synopsis to Chapter 308 Housing Discrimination Complaints, § 308.syn.

344.365. Exemptions from housing provisions.

  1. Nothing in KRS 344.360 shall apply:
    1. To the rental of a housing accommodation in a building which contains housing accommodations for not more than two (2) families living independently of each other, if the owner or a member of his family resides in one of the housing accommodations;
    2. To the rental of one (1) room or one (1) rooming unit in a housing accommodation by an individual if he or a member of his family resides therein;
    3. To a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, which limits the sale, lease, rental, occupancy, assignment, or sublease of a housing accommodation which it owns or operates for other than commercial purpose to persons of the same religion, or from giving preference to those persons, unless membership in the religion is restricted on account of race, color, or national origin. Nor shall anything in this chapter prohibit a private club not in fact open to the public, which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of the lodgings to its members or from giving preference to its members.
    4. To a private individual homeowner disposing of his property through private sale without the aid of any real estate operator, broker, or salesman and without advertising or public display except that attorneys, escrow agents, abstractors, title companies, and other professional assistance may be utilized as necessary to perfect or transfer the title.
  2. Nothing in this chapter shall require a real estate operator to negotiate with any individual who has not shown evidence of financial ability to consummate the purchase or rental of a housing accommodation.
  3. Nothing in this chapter shall limit the applicability of any reasonable local, state, or federal restrictions regarding the maximum number of occupants permitted to occupy a housing accommodation. No provision in this chapter regarding familial status shall apply with respect to “housing for older persons,” as defined in the Federal Fair Housing Act, 42 U.S.C. 3607.
  4. Nothing in this section prohibits conduct against a person because the person has been convicted by any court of competent jurisdiction of the illegal manufacture or distribution of a controlled substance as defined in Section 102 of the Controlled Substances Act (21 U.S.C. 802) or KRS Chapter 218A.

History. Enact. Acts 1968, ch. 167, § 6; 1972, ch. 255, § 13; 1974, ch. 187, § 4; 1992, ch. 282, § 38, effective July 14, 1992.

NOTES TO DECISIONS

1. Racial Discrimination.

Realtor engaged in unlawful housing practices by explaining to a black couple that a house which they sought to rent was only for sale, where a white woman was shown the same house by the same realtor and was told that she could lease the house for six months, and where the house was in fact rented to a white male on a six-month lease with no obligation that he purchase the property. Kentucky Com. on Human Rights v. Ken Morris Realty Co., 775 S.W.2d 947, 1989 Ky. App. LEXIS 112 (Ky. Ct. App. 1989).

Research References and Practice Aids

Kentucky Bench & Bar.

Schwemm, Kentucky Is a Leader in Fair Housing Enforcement, Volume 52, No. 4, Fall 1988 Ky. Bench & B. 26.

Kentucky Law Journal.

Article: Overcoming Structural Barriers to Integrated Housing: A Back-to-the-Future Reflection on the Fair Housing Act’s “Affirmatively Further” Mandate, 100 Ky. L.J. 125 (2011/2012).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer to Claim Based on Violation of KRS 344.360 , Claiming Exemptions Under KRS 344.365 , § 308.04.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

Caldwell’s Kentucky Form Book, 5th Ed., Synopsis to Chapter 308 Housing Discrimination Complaints, § 308.syn.

344.367. Unlawful discrimination in insurance against hazards to a housing accommodation.

It is an unlawful practice for a person in the business of insuring against hazards to refuse to enter into, or discriminate in the terms, conditions, or privileges of, a contract of insurance against hazards to a housing accommodation because of the race, color, religion, national origin, familial status, disability, or sex of persons owning, or residing in or near the housing accommodation.

History. Enact. Acts 1980, ch. 245, § 11, effective July 15, 1980; 1992, ch. 282, § 40, effective July 14, 1992.

Research References and Practice Aids

Kentucky Bench & Bar.

Schwemm, Kentucky Is a Leader in Fair Housing Enforcement, Volume 52, No. 4, Fall 1988 Ky. Bench & B. 26.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.370. Unlawful financial practices.

It is an unlawful practice for a financial institution or for any person or other entity whose business includes engaging in real estate-related transactions:

  1. To discriminate against an individual because of the race, color, religion, or national origin, familial status, disability, sex, or age of the individual or the present or prospective owner, tenant, or occupant of the real property or of a member, stockholder, director, officer, employee, or representative of any of these, in the granting, withholding, extending, modifying, or renewing the rates, terms, conditions, privileges, or other provisions of financial assistance or in the extension of services in connection therewith;
  2. To use a form of application for financial assistance or to make or keep a record or inquiry in connection with applications for financial assistance which indicate, directly or indirectly, a limitation, specification, or discrimination as to race, color, religion, familial status, disability, or national origin or an intent to make such a limitation, specification, or discrimination;
  3. To discriminate by refusing to give full recognition, because of sex, to the income of each spouse or the total income and expenses of both spouses where both spouses become or are prepared to become joint or several obligors in real estate transactions; or
  4. As used in this section, the term “real estate-related transaction” means any of the following:
    1. The making or purchasing of loans or providing other financial assistance;
      1. For purchasing, constructing, improving, repairing, or maintaining a housing accommodation; or
      2. Secured by real estate.
    2. The selling, brokering, or appraising of real property except that a person engaged in the business of furnishing appraisals of real property may take into consideration factors other than race, color, religion, national origin, sex, disability, or familial status.

History. Enact. Acts 1968, ch. 167, § 5; 1974, ch. 104, § 5; 1992, ch. 282, § 41, effective July 14, 1992.

Research References and Practice Aids

Kentucky Bench & Bar.

Schwemm, Kentucky Is a Leader in Fair Housing Enforcement, Volume 52, No. 4, Fall 1988 Ky. Bench & B. 26.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.375. Agency no defense in proceeding against real estate dealer.

It shall be no defense to a violation of this chapter by a real estate operator, real estate broker, real estate salesman, financial institution, or other person subject to the provisions of this chapter that the violation was requested, sought or otherwise procured by a person not subject to the provisions of this chapter.

History. Enact. Acts 1968, ch. 167, § 7.

344.380. Block busting.

It is an unlawful practice for a real estate operator, a real estate broker, a real estate salesman, a financial institution, an employee of any of these, or any other person, for the purpose of inducing a real estate transaction from which a person may benefit financially:

  1. To represent that a change has occurred or will or may occur in the composition with respect to race, color, religion, sex, disability, familial status, or national origin of the owners or occupants in the block, neighborhood, or area in which the real property is located;
  2. To represent that this change will or may result in the lowering of property values, an increase in criminal or antisocial behavior, or a decline in the quality of schools in the block, neighborhood, or area in which the real property is located; or
  3. To induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, disability, familial status, or national origin.

History. Enact. Acts 1968, ch. 167, § 4; 1992, ch. 282, § 42, effective July 14, 1992.

Research References and Practice Aids

Kentucky Bench & Bar.

Schwemm, Kentucky Is a Leader in Fair Housing Enforcement, Volume 52, No. 4, Fall 1988 Ky. Bench & B. 26.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

ALR

Validity and construction of anti-blockbusting regulations as designated to prevent brokers from inducing sales of realty because of actual or rumored entry of racial group in neighborhood. 34 A.L.R.3d 1432.

344.385. Notice of violation by real estate dealer to be given Real Estate Commission — Notice of violation to state or federal licensing agency.

  1. Where a real estate broker or a real estate salesman has failed to comply with an order issued by the commission or has been found to have committed an unfair housing practice in violation of KRS 344.380 , the commission shall notify in writing the Real Estate Commission of the Commonwealth of Kentucky of the failure to comply or violation.
  2. In the case of an order with respect to a discriminatory housing practice that occurred in the course of a business subject to licensing or regulation by a state or federal government agency, the commission shall, not later than thirty (30) days after the date of the issuance of the order, or if the order is judicially reviewed, thirty (30) days after the order is in substance affirmed upon review:
    1. Send copies of the finding of fact, conclusions of law, and the order to that governmental agency; and
    2. Recommend to that governmental agency appropriate disciplinary action, including, where appropriate, the suspension or revocation of the license of the respondent.

History. Enact. Acts 1968, ch. 167, § 11; 1992, ch. 282, § 43, effective July 14, 1992.

344.400. Unlawful practices in connection with credit transactions — Exceptions.

  1. It shall be an unlawful practice for any person, whether acting for himself or another, in connection with any credit transaction because of race, color, religion, national origin or sex to:
    1. deny credit to any person;
    2. increase the charges or fees for or collateral required to secure any credit extended to any person;
    3. restrict the amount or use of credit extended or impose different terms or conditions with respect to the credit extended to any person or any item or service related thereto;
    4. attempt to do any of the unlawful practices defined in this section.
  2. The provisions of this section shall not prohibit any party to a credit transaction from considering the credit history of any individual applicant.
  3. The provisions of this section shall not prohibit any party to a credit transaction from considering the application of Kentucky law on dower, curtesy, descent and distribution to the particular case or from taking reasonable action thereon.

History. Enact. Acts 1974, ch. 104, § 7.

344.450. Civil remedies for injunction and damages.

Any person injured by any act in violation of the provisions of this chapter shall have a civil cause of action in Circuit Court to enjoin further violations, and to recover the actual damages sustained, together with the costs of the law suit. The court’s order or judgment shall include a reasonable fee for the plaintiff’s attorney of record and any other remedies contained in this chapter.

History. Enact. Acts 1974, ch. 104, § 8; 1996, ch. 318, § 323, effective July 15, 1996.

NOTES TO DECISIONS

  1. Construction.
  2. Legislative Intent.
  3. Dual Enforcement System.
  4. Federal Action Pending.
  5. Referral by Federal Agency.
  6. Circuit Court Action.
  7. Statute of Limitations.
  8. Action Against Retaliation.
  9. Sovereign Immunity.
  10. Indemnity.
  11. Jury Trial.
  12. Summary Judgment.
  13. Injunctions.
  14. Damages.
  15. — Punitive.
  16. — Mental and Emotional Injury.
  17. Costs and Interest.
  18. Attorneys’ Fees.
  19. Scope of Review.
1. Construction.

One important purpose of the Kentucky Civil Rights Act was to incorporate the anti-discrimination “policies embodied” in the Federal Civil Rights Acts of 1964 (P.L. 88-352, Title VII—Equal Employment Opportunity) as amended. But there are further purposes expressed in the Kentucky statute not specified in the federal, including “protect[ing] . . . . . personal dignity and freedom from humiliation.” Whereas the policies embodied in the Kentucky Civil Rights Act are the same as the federal counterpart, the statutory remedy provided through the court system differs markedly because of these further policy statements and because of the difference in remedy provided in this section as contrasted with those provided in the Federal Act, 42 USCS § 2000e-5. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

The Kentucky Civil Rights Act is a controlling specific statute as contrasted with the general law on the subject in the Workers' Compensation Law. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

Plaintiffs in pending employment lawsuit against debtor were entitled to stay relief because claims brought by plaintiffs pursuant to Title VII of the Civil Rights Act, Americans with Disability Act, and Kentucky Civil Rights Act were “personal injury torts” excluded from bankruptcy court’s authority to adjudicate. In re Mason, 2014 Bankr. LEXIS 3361 (Bankr. E.D. Ky. 2014 ).

2. Legislative Intent.

The Supreme Court of Kentucky had to presume that the General Assembly knew of the Workers’ Compensation Law preemption doctrine when it created a private cause of action for “actual damages” caused by discrimination in the Kentucky Civil Rights Act, and that it intended to create an independent cause of action notwithstanding that the two statutes might provide alternative sources of statutory relief in those cases where the mental emotional injury inflicted caused work-related occupational disability. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

3. Dual Enforcement System.

In reading this chapter as a whole, it appears that the legislature created a dual system for enforcement of the Kentucky Civil Rights Act, one through the administrative process and one through Circuit Court action, and the two procedures are to be alternative, not identical means of obtaining relief. Berry v. General Electric Co., 541 F. Supp. 800, 1982 U.S. Dist. LEXIS 13189 (W.D. Ky. 1982 ), disapproved, Mitchell v. Seaboard S. Railroad, 883 F.2d 451, 1989 U.S. App. LEXIS 12284 (6th Cir. Ky. 1989 ).

The Kentucky Civil Rights Act creates a jural right as well as a right to redress by administrative procedure. To the extent it creates a jural right both plaintiff and defendant are entitled to a trial by jury. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

Former employee previously filed an administrative complaint alleging discrimination with a county human rights commission and the commission found no probable cause to believe that any violation of state anti-discrimination laws occurred; the district court properly ruled that the administrative decision had the effect of barring the employee’s state-law claims under election-of-remedies principles and his federal-law claims under the doctrine of administrative preclusion. Herrera v. Churchill McGee, 680 F.3d 539, 2012 FED App. 0137P, 2012 U.S. App. LEXIS 9818 (6th Cir. Ky.), cert. denied, 568 U.S. 1028, 133 S. Ct. 653, 184 L. Ed. 2d 460, 2012 U.S. LEXIS 9069 (U.S. 2012).

Where an individual receives an order of dismissal from a civil rights commission—whether state or local—and the individual does not seek further relief in the manner prescribed by the commission, but rather files a Kentucky Civil Rights Act, KRS 344.450 , lawsuit in court based on the same claim, the election-of-remedies doctrine bars the subsequent lawsuit. Herrera v. Churchill McGee, 680 F.3d 539, 2012 FED App. 0137P, 2012 U.S. App. LEXIS 9818 (6th Cir. Ky.), cert. denied, 568 U.S. 1028, 133 S. Ct. 653, 184 L. Ed. 2d 460, 2012 U.S. LEXIS 9069 (U.S. 2012).

4. Federal Action Pending.

A person who has made a complaint of employment discrimination with the Equal Employment Opportunity Commission (EEOC) cannot invoke the jurisdiction of a Kentucky court under this section while his claim is pending with the federal body; however, if his claim is not resolved by the EEOC and that body relinquishes jurisdiction or responsibility over his claim by issuing to him what is commonly known as a “right to sue” letter as provided by 42 USCS 2000e-5(f)(1), the claimant may bring an action in a Kentucky court under this section if he does not elect instead to proceed in a federal court under 42 USCS 2000e et seq. McNeal v. Armour & Co., 660 S.W.2d 957, 1983 Ky. App. LEXIS 303 (Ky. Ct. App. 1983).

5. Referral by Federal Agency.

An individual claiming to be aggrieved by an unlawful practice under the Kentucky Civil Rights Act is not precluded by the time limitations of former subsection (6) of KRS 344.240 from instituting a civil rights action pursuant to this section, where that individual has had his charges of discrimination referred by the EEOC and to the Kentucky Human Rights Commission but the KHRC has issued no order. Canamore v. Tube Turns Div. of Chemetron Corp., 676 S.W.2d 800, 1984 Ky. App. LEXIS 581 (Ky. Ct. App. 1984) (Decision prior to 1996 amendment of KRS 344.240 ).

An individual who has charges of discrimination referred by the federal agency to the state agency, but without an order issued by the Kentucky agency, is not precluded by former KRS 344.240 (6), from pursuing rights under this section; where the Kentucky Commission on Human Rights never gave the employee’s discrimination charges the slightest consideration, and it never issued any order relating to the claim of discrimination, her action was not barred. Clifton v. Midway College, 702 S.W.2d 835, 1985 Ky. LEXIS 268 ( Ky. 1985 ) (decision under prior version of KRS 344.240 ).

6. Circuit Court Action.

Once a claimant alleging illegal discrimination has received a “Notice of Right to Sue” from the Equal Employment Opportunities Commission, nothing in KRS 344.270 is an obstacle to asserting a claim in a Kentucky Circuit Court pursuant to this section, so long as the claimant does not seek to use a parallel remedy in federal court. Clifton v. Midway College, 702 S.W.2d 835, 1985 Ky. LEXIS 268 ( Ky. 1985 ).

State employees claiming discrimination were afforded a choice of remedies and could pursue an administrative remedy or a judicial remedy. When an employee elected to pursue the administrative remedy, he was bound by his election and was barred from filing a discrimination lawsuit after the administrative proceeding’s outcome was adverse to him; as such, the circuit court properly granted summary judgment in favor of the state agency in the employee’s discrimination suit. McKissic v. Commonwealth Transp. Cabinet, 334 S.W.3d 885, 2010 Ky. App. LEXIS 49 (Ky. Ct. App. 2010).

7. Statute of Limitations.

While state law governs the substantive limitation period, federal law governs when the cause of action accrues, and thus when the statute begins to run. Leonard v. Corrections Cabinet, 828 S.W.2d 668, 1992 Ky. App. LEXIS 75 (Ky. Ct. App. 1992).

8. Action Against Retaliation.

Plaintiff could maintain a cause of action against two individuals who, in alleged violation of KRS 344.280 , conspired to retaliate against her for filing a sexual discrimination lawsuit, even though KRS 344.990 makes a willful violation of KRS 344.280 a misdemeanor. Palmer v. International Ass'n of Machinists, 882 S.W.2d 117, 1994 Ky. LEXIS 54 ( Ky. 1994 ).

9. Sovereign Immunity.

The Commonwealth of Kentucky has waived sovereign immunity for claims brought under the Kentucky Civil Rights Act. Department of Corrections v. Furr, 23 S.W.3d 615, 2000 Ky. LEXIS 43 ( Ky. 2000 ).

10. Indemnity.

A claim for common law indemnity is available in a civil rights action. Degener v. Hall Contr. Corp., 27 S.W.3d 775, 2000 Ky. LEXIS 63 ( Ky. 2000 ).

11. Jury Trial.

The Kentucky Constitution protects the right to trial by jury. A cause of action pursued under the Kentucky Civil Rights Act is a damage suit like any other. Once a cause of action for damages to be tried in the courts of this Commonwealth has been created by statute, a further provision providing the parties shall have a right to trial by jury is surplusage. To state otherwise would conflict with the Kentucky Constitution. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

12. Summary Judgment.

Because an employee possibly could have established that her former employer knew that two of her coworkers were harassing women and deliberately failed to address the problem, the court will allow the employee’s punitive damages claim to stand for the purpose of summary judgment. Grego v. Meijer, Inc., 239 F. Supp. 2d 676, 2002 U.S. Dist. LEXIS 25037 (W.D. Ky. 2002 ).

Employee’s contention that being placed on administrative leave for having been charged and incarcerated for disorderly conduct and assault, and lying about the absence to his employer, was unfair and retaliatory, failed to survive summary judgment because temporal proximity to the filing of an Equal Employment Opportunity Commission charge, without more, did not establish a causal connection. Hampton v. Norton Healthcare, Inc., 2004 U.S. Dist. LEXIS 15294 (W.D. Ky. Aug. 4, 2004).

Trial court erred when it allocated one-half of the attorney’s fees to a civil rights claim and one-half to a defamation claim because that was done with no consideration of the actual time and effort expended on the different claims or consideration of the time and effort common to all the claims. The case was remanded with directions to award a fee that reasonably valued the legal services expended to prevail on the civil rights claims, regardless of the other claims with which the civil rights claims were joined. Hill v. Ky. Lottery Corp., 327 S.W.3d 412, 2010 Ky. LEXIS 317 ( Ky. 2010 ).

13. Injunctions.

While the statute authorizes injunctive relief, it remains an equitable remedy addressed to the sound discretion of the trial court. Kentucky Dep't of Corrections v. McCullough, 2000 Ky. App. LEXIS 57 (Ky. Ct. App. May 26, 2000), aff'd in part and rev'd in part, 123 S.W.3d 130, 2003 Ky. LEXIS 180 ( Ky. 2003 ).

14. Damages.

The statement in this section to the effect that the civil remedies “shall be in addition to any other remedies contained in this chapter,” does not imply that the plaintiff can sidestep the administrative processes of the commission on human rights and still claim in the Circuit Court action the remedies delegated to that administrative body, such as a compensatory award for humiliation. Berry v. General Electric Co., 541 F. Supp. 800, 1982 U.S. Dist. LEXIS 13189 (W.D. Ky. 1982 ), disapproved, Mitchell v. Seaboard S. Railroad, 883 F.2d 451, 1989 U.S. App. LEXIS 12284 (6th Cir. Ky. 1989 ).

Compensatory damages for psychological distress, humiliation, pain and suffering may not be awarded by the Circuit Court in an action brought under the Age Discrimination in Employment Act of 1967 (ADEA), 29 USCS, section 621 et seq. or under the Kentucky Civil Rights Act, KRS 344.010 et seq. Berry v. General Electric Co., 541 F. Supp. 800, 1982 U.S. Dist. LEXIS 13189 (W.D. Ky. 1982 ), disapproved, Mitchell v. Seaboard S. Railroad, 883 F.2d 451, 1989 U.S. App. LEXIS 12284 (6th Cir. Ky. 1989 ).

The statement in this section to the effect that an injunction and an award of actual damages “shall be in addition to any other remedies contained in this chapter,” does not imply that a plaintiff can sidestep the administrative processes of the commission on human rights and still claim in a Circuit Court action the remedies delegated solely to that administrative body under KRS 344.230 , such as the awarding of compensatory damages for humiliation and embarrassment. Ellis v. Logan Co., 543 F. Supp. 586, 1982 U.S. Dist. LEXIS 13732 (W.D. Ky. 1982 ), disapproved, Mitchell v. Seaboard S. Railroad, 883 F.2d 451, 1989 U.S. App. LEXIS 12284 (6th Cir. Ky. 1989 ).

This section does not authorize awards of damages for humiliation and emotional distress. Easton v. Louisville & Jefferson County Bd. of Health, 706 F. Supp. 536, 1987 U.S. Dist. LEXIS 14491 (W.D. Ky. 1987 ).

Compensatory damages, although not recoverable under Title VII of the Federal Civil Rights Act, are recoverable under the Kentucky Civil Rights Act. Mitchell v. Seaboard S. Railroad, 883 F.2d 451, 1989 U.S. App. LEXIS 12284 (6th Cir. Ky. 1989 ).

This section permits a recovery for humiliation, embarrassment, personal indignity, and other intangible injuries. Easton v. Louisville & Jefferson County Bd. of Health, 706 F. Supp. 536, 1987 U.S. Dist. LEXIS 14491 (W.D. Ky. 1987 ); Mitchell v. Seaboard S. Railroad, 883 F.2d 451, 1989 U.S. App. LEXIS 12284 (6th Cir. Ky. 1989 ).

Because CR 54.03, which was similar to Fed. R. Civ. P. 54(c), allowed for relief not specifically requested in the complaint, the actual demand set forth in the complaint was not controlling on the issue of whether the jurisdictional amount was met for purposes of diversity jurisdiction under 28 USCS § 1332; however, remand was required because the suit was filed under KRS 344.450 and, after considering all of the damages available under that statute, the corporation failed to show that the damages were likely to exceed $75,000. Parrigin v. Pfaff Indus. of Am., Inc., 2006 U.S. Dist. LEXIS 92135 (W.D. Ky. Dec. 19, 2006).

Where a former employee alleged sexual harassment, gender discrimination, and wrongful termination under the Kentucky Civil Rights Act, remand to state court was not warranted, because it was more likely than not that the amount in controversy was at least $75,000 since the calculation of backpay appropriately included accruals through the projected trial date, and the employee allegedly was entitled to punitive damages for gross negligence. Shupe v. Asplundh Tree Expert Co., 566 Fed. Appx. 476, 2014 FED App. 0382N, 2014 U.S. App. LEXIS 9668 (6th Cir. Ky. 2014 ).

Jury’s award of compensatory damages was not excessive, but were based on evidence of a persistent hostile work environment and the employer’s indifferent and uninterested conduct of investigations and lack of appropriate remedial measures. UPS v. Barber, 557 S.W.3d 303, 2018 Ky. App. LEXIS 218 (Ky. Ct. App. 2018).

15. — Punitive.

The statute allows the award of punitive damages. Timmons v. Wal-Mart Stores, 33 F. Supp. 2d 577, 1999 U.S. Dist. LEXIS 447 (W.D. Ky. 1999 ).

Punitive damages may be awarded under KRS Chapter 344. Kentucky Dep't of Corrections v. McCullough, 2000 Ky. App. LEXIS 57 (Ky. Ct. App. May 26, 2000), aff'd in part and rev'd in part, 123 S.W.3d 130, 2003 Ky. LEXIS 180 ( Ky. 2003 ).

Punitive damages were not intended to be permitted in cases arising under the statute. Boone v. Kent Feeds, Inc., 2001 U.S. Dist. LEXIS 9616 (W.D. Ky. July 11, 2001).

Court predicted that the Kentucky Supreme Court would hold that punitive damages were available in employment discrimination cases under the Kentucky Civil Rights Act. Grego v. Meijer, Inc., 239 F. Supp. 2d 676, 2002 U.S. Dist. LEXIS 25037 (W.D. Ky. 2002 ).

Punitive damages are not an available remedy under KRS 344.450 . Ky. Dep't of Corr. v. McCullough, 123 S.W.3d 130, 2003 Ky. LEXIS 180 ( Ky. 2003 ), modified, 2004 Ky. LEXIS 23 (Ky. Jan. 22, 2004), modified, 2004 Ky. LEXIS 24 (Ky. Jan. 22, 2004); Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 2004 Ky. LEXIS 14 ( Ky. 2004 ), modified, 2004 Ky. LEXIS 126 (Ky. May 20, 2004).

Trial court’s erroneous instruction on punitive damages was manifestly unjust, because punitive damages were not an available remedy under KRS 344.450 . Childers Oil Co. v. Adkins, 256 S.W.3d 19, 2008 Ky. LEXIS 150 ( Ky. 2008 ).

16. — Mental and Emotional Injury.

The Workers’ Compensation Law does not preclude a claim for damages for mental and emotional injury inflicted by sexually discriminatory practices. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

In an action for age discrimination, the jury’s award of emotional distress damages was proper, because the claim for compensatory damages under the Kentucky Civil Rights Act could include damages for emotional distress. Childers Oil Co. v. Adkins, 256 S.W.3d 19, 2008 Ky. LEXIS 150 ( Ky. 2008 ).

17. Costs and Interest.

The statute expressly contemplates and provides for the recovery of costs of lawsuits filed pursuant to KRS Chapter 344; however, the chapter does not provide for interest on judgments against the Commonwealth. Kentucky Dep't of Corrections v. McCullough, 2000 Ky. App. LEXIS 57 (Ky. Ct. App. May 26, 2000), aff'd in part and rev'd in part, 123 S.W.3d 130, 2003 Ky. LEXIS 180 ( Ky. 2003 ).

18. Attorneys’ Fees.

Plaintiff ’s attorneys claimed the right to “fee enhancement” of attorney’s fees award because the employee was represented on a contingent fee basis. However, the Supreme Court of the United States has found that “contingency enhancement” is inappropriate in such cases. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

To the extent this section provides for the award of attorney fees for successfully prosecuting a Civil Rights Act claim, it now tracks similar language in the Federal Civil Rights Act, 42 USCS. Sec. 2000e-5(k). But the federal counterpart for judicial proceedings found in Sec. 2000e-5(g) provides only for injunctive and “other equitable relief as the court deems appropriate.” It does not provide for a “cause of action . . . . . to recover the actual damages sustained by” the employee, as does the Kentucky Civil Rights Act. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

Where more pages and efforts were expended in arguing about the fee award than on the major substantive issues, none of the arguments presented began to approach a substantial showing the trial court made any significant miscalculation in awarding attorney’s fees, much less that it abused its discretion. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

An award of attorneys’ fees was remanded with directions that the court enter appropriate findings of fact as to the issue of the amount of attorneys’ fees where the plaintiff’s attorneys documented and requested approximately $ 70,000, but the court peremptorily awarded only $ 50,000 and it was unclear from the record how the court arrived at that figure. Kentucky Dep't of Corrections v. McCullough, 2000 Ky. App. LEXIS 57 (Ky. Ct. App. May 26, 2000), aff'd in part and rev'd in part, 123 S.W.3d 130, 2003 Ky. LEXIS 180 ( Ky. 2003 ).

Trial court’s judgment for an employee in a civil rights action under KRS Chapter 344, which did not dispose of his claim for attorney’s fees under KRS 344.450 , was not a final judgment and could not be appealed. Francis v. Crounse Corp., 98 S.W.3d 62, 2002 Ky. App. LEXIS 453 (Ky. Ct. App. 2002).

Employee did not prevail on any portion of the litigation for which she now sought reimbursement for her attorney’s fees; the trial court correctly found the fee application was unreasonable and the amounts sought were non-compensable under the law. Brooks v. Lexington-Fayette Urban County Hous. Auth., 332 S.W.3d 85, 2009 Ky. App. LEXIS 219 (Ky. Ct. App. 2009).

In an action by discharged employees, it was error under KRS 344.450 to split the attorney fee equally between a defamation claim and a civil rights claim, ignoring the interrelationship of the claims. The court remanded with directions to award a fee that reasonably valued the legal services expended to prevail on the civil rights claims, regardless of the other claims with which the civil rights claims were joined. Hill v. Ky. Lottery Corp., 2010 Ky. LEXIS 82 (Ky. Apr. 22, 2010), sub. op., 327 S.W.3d 412, 2010 Ky. LEXIS 317 ( Ky. 2010 ), modified, 2010 Ky. LEXIS 318 (Ky. Dec. 16, 2010).

As the retaliation claim judgment was affirmed, the attorney fees and costs award based on the retaliation claim was also affirmed. Smith v. Lewis, 2019 Ky. App. LEXIS 115 (Ky. Ct. App.), sub. op., 2019 Ky. App. Unpub. LEXIS 903 (Ky. Ct. App. July 5, 2019), review denied, ordered not published, 2019 Ky. LEXIS 489 (Ky. Dec. 13, 2019).

19. Scope of Review.

Deciding whether evidence of sexual harassment rises to the level of “severe or pervasive” contains an interpretive component. But this does not mean the reviewing court should substitute its judgment on the issue for that of the jury and the trial judge. Utilizing de novo review, is inappropriate as to ultimate fact questions determined by the jury under the Kentucky Civil Rights Act. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

Cited:

Pyro Mining Co. v. Kentucky Com. on Human Rights, 678 S.W.2d 393, 1984 Ky. LEXIS 290 ( Ky. 1984 ); Harvey v. I.T.W., Inc., 672 F. Supp. 973, 1987 U.S. Dist. LEXIS 13003 (W.D. Ky. 1987 ); Day v. Alcan Aluminum Corp., 675 F. Supp. 1508, 1987 U.S. Dist. LEXIS 12276 (W.D. Ky. 1987 ); Million v. Raymer, 136 S.W.3d 460, 2004 Ky. LEXIS 146 ( Ky. 2004 ); Lawrence v. Bushart, 2005 Ky. App. LEXIS 171 (Ky. Ct. App. 2005); Griffin Indus. v. Mullen, 2006 Ky. App. LEXIS 96 (Ky. Ct. App. 2006).

Research References and Practice Aids

Kentucky Bench & Bar.

Vish, Age Discrimination Act: An Overview, Vol. 41, No. 1, Jan. 1977 Ky. Bench & B. 13.

Mapother, Attorneys’ Fees Recoverable in Kentucky Litigation, Vol. 44, No. 4, October 1980, Ky. Bench & Bar 28.

Kentucky Law Journal.

Waldrop, Enforcement of the Fair Housing Act: What Role Should the Federal Government Play?, 74 Ky. L.J. 201 (1985-86).

Northern Kentucky Law Review.

Hawkins and MacGillivray, A Summary of Kentucky Employment Law Decisions, 21 N. Ky. L. Rev. 357 (1994).

Bartlett & Maggio, Civil Procedure Survey, 29 N. Ky. L. Rev. 316 (2001).

Jackson and Crase, A Surveyof Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Appellant’s Brief, Form 101.25.

Kentucky Instructions To Juries (Civil), 5th Ed., Employment, §§ 45.01 — 45.06.

344.500. Appointment of interpreter for deaf, hard-of-hearing, or speech-impaired person — Compensation of interpreter.

  1. Any person who is deaf, hard of hearing, or speech impaired or who because of a speaking or other impairment has difficulty in communicating with other persons shall be entitled to the assistance and services of a qualified interpreter.
  2. A qualified interpreter shall be appointed in any proceeding before a board, commission, agency, or licensing authority of the state or any of its political subdivisions, when the principal party in interest or a witness is deaf, hard of hearing, or speech impaired.
  3. No person shall be appointed as an interpreter pursuant to this section unless the appointing authority makes a preliminary determination that the interpreter is able to readily communicate with the person who is deaf, hard of hearing, or speech impaired, and is able to accurately repeat and translate the statements of the person, and the appointee is agreed to by the person who is deaf, hard of hearing, or speech impaired.
  4. Upon the request of the appointing authority, the Kentucky Commission on the Deaf and Hard of Hearing, the Kentucky Registry of Interpreters for the Deaf, or the Kentucky Association of the Deaf, shall recommend qualified interpreters to assist a person who is deaf, hard of hearing, or speech impaired.
  5. The appointing authority shall set the compensation for each day the interpreter is in attendance. The compensation, plus any reasonable expenses incurred by the interpreter, shall be paid from the funds of the appointing authority.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 277, effective January 2, 1978; 1992, ch. 144, § 17, effective July 14, 1992; 1994, ch. 452, § 7, effective July 15, 1994.

Commission on Women

344.510. Commission established — Members — Terms — Executive director.

  1. There is hereby established the Kentucky Commission on Women as a separate administrative body of state government within the meaning of KRS Chapter 12.
  2. The membership of the commission shall consist of the Lieutenant Governor and not more than twenty-four (24) members and a chairman who shall be appointed by the Governor. The members of the commission shall serve terms of four (4) years; except that:
    1. Of the members initially appointed after June 17, 1978, six (6) members shall serve a term of one (1) year, six (6) a term of two (2) years, six (6) a term of three (3) years and six (6) a term of four (4) years; and
    2. Of the members appointed after July 15, 1998, six (6) members appointed to fill the terms expiring June 17, 1999, shall serve until January 17, 2000; six (6) members appointed to fill the terms expiring June 17, 2000, shall serve until January 17, 2001; six (6) members appointed to fill the terms expiring June 17, 2001, shall serve until January 17, 2002; and six (6) members appointed to fill the terms expiring June 17, 2002, shall serve until January 17, 2003; and subsequent appointments shall be for four (4) year terms ending on January 17. The Governor shall appoint a chairman who shall serve at the Governor’s will. There shall be an executive director, who shall be appointed by the Governor, and shall be administrative head and chief executive officer of the commission. The Governor, in appointing the commission, shall attempt to insure, insofar as it may be practicable, and with due regard to the several geographic regions and socio-economic groupings of the state, that the membership is broadly representative of the women of the state. The commission shall meet at the call of the chairman, but at least twice during each calendar year; a majority of the members shall constitute a quorum for the transaction of the commission’s business.

History. Enact. Acts 1970, ch. 70, § 1; 1978, ch. 155, § 157, effective June 17, 1978; 1982, ch. 379, § 9, effective April 9, 1982; 1998, ch. 194, § 10, effective July 15, 1998.

Research References and Practice Aids

Kentucky Law Journal.

Miller, Staking Their Claim: The Impact of Kentucky Women in the Political Process, 84 Ky. L.J. 1163 (1995-96).

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, A, 9, (1) at 855.

344.515. Commission attached to Governor.

The Commission on Women and its subcommittees, task forces, advisory committees, and other associated bodies shall be an independent agency attached to the Governor.

History. Enact. Acts 1974, ch. 74, Art. VI, § 12(3); 1980, ch. 295, § 90, effective July 15, 1980.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, A, 9, (1) at 855.

344.520. Duties and functions of commission.

The duties and functions of the commission shall be to:

  1. Promote, encourage, and provide advisory assistance in the establishment of local volunteer community improvement programs for, and of interest to, women;
  2. Conduct programs, studies, seminars, and conferences, and encourage state and local women’s business, professional, and civic organizations to do likewise, to educate the public to the problems of women;
  3. Consult with and advise the Governor and the agencies, departments, boards, and commissions of the state and local and municipal governments on matters pertaining to women;
  4. Cooperate with the federal government and with the governments of other states in programs relating to women; and
  5. Contract from time to time as may be appropriate with experts and consultants who may be utilized as deemed necessary and make other purchases and expenditures, all in accordance with the provisions of KRS Chapter 45A, and make such other agreements, subject to the provisions of KRS Chapter 45 and 45A, and perform any acts that may be necessary to carry out the purposes of KRS 344.510 to 344.530 .

History. Enact. Acts 1970, ch. 70, § 2; 1990, ch. 496, § 63, effective July 13, 1990.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, A, 9, (1) at 855.

344.530. Annual report.

The commission shall submit an annual report to the Governor before the thirtieth day of June each year, summarizing the commission’s activities during the preceding fiscal year and making such recommendations as the commission deems appropriate.

History. Enact. Acts 1970, ch. 70, § 3.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, A, 9, (1) at 855.

Sex Equity in Education

344.550. Definitions for KRS 344.550 to 344.575.

For purposes of KRS 344.550 to 344.575 :

  1. “Educational institution” means any public or private preschool, elementary, or secondary school, or any institution of vocational, professional, or higher education, except that in the case of an educational institution composed of more than one (1) school, college, or department which are administratively separate units, the term means each school, college, or department.
  2. “Funding recipient” means any department, agency, special purpose district, instrumentality of state or local government, college, university, postsecondary institution, public system of higher education, local educational agency, system of vocational education, corporation, partnership, private organization or sole proprietorship receiving state financial assistance for any education program or activity.

History. Enact. Acts 1990, ch. 462, § 1, effective July 13, 1990.

Research References and Practice Aids

Northern Kentucky Law Review.

General Law Issue: Article: De-Clothing Sex-Based Classifications - Same-Sex Marriage is Just the Beginning: Achieving Formal Sex Equality in the Modern Era, 36 N. Ky. L. Rev. 1 (2009).

344.555. Prohibition against sex discrimination under any education program receiving state financial assistance — Exceptions.

  1. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving state financial assistance, except that:
    1. In regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education;
    2. This section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of the organization;
    3. This section shall not apply to an educational institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marines;
    4. In regard to admissions, this section shall not apply to any public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one (1) sex;
    5. This section shall not apply to membership practices of a social fraternity or social sorority which is exempt under Section 501(a) of the Federal Internal Revenue Code of 1954, the active membership of which consists primarily of students in attendance at an institution of higher education, or of the Young Men’s Christian Association, Young Women’s Christian Association, Girl Scouts, Boy Scouts, Camp Fire Girls, and voluntary youth service organizations which are exempt under Section 501(a) of the Federal Internal Revenue Code, the membership of which has traditionally been limited to persons of one (1) sex and principally to persons of less than nineteen (19) years of age;
    6. This section shall not apply to any program or activity of the American Legion undertaken in connection with the organization or operation of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or any program or activity of any secondary school or educational institution specifically for the promotion of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or the selection of students to attend any such conference;
    7. This section shall not preclude father-son or mother-daughter activities at an educational institution, but if such activities are provided for students of one (1) sex, opportunities for reasonably comparable activities shall be provided for students of the other sex; and
    8. This section shall not apply to any scholarship or other financial assistance awarded by an institution of higher education to any individual because such individual has received the award in any pageant in which the attainment of the award is based upon a combination of factors related to the personal appearance, poise, and talent of the individual and in which participation is limited to individuals of one (1) sex only, so long as the pageant is in compliance with other nondiscrimination provisions of state and federal law.
  2. Nothing contained in subsection (1) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one (1) sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any state supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, state, section, or other area. However, nothing in this subsection shall be construed to prevent the consideration in any hearing or proceeding under KRS 344.550 to 344.575 of statistical evidence tending to show that an imbalance exists with respect to the participation in, or receipt of the benefits of, any program or activity by the members of one (1) sex.

History. Enact. Acts 1990, ch. 462, § 2, effective July 13, 1990.

Compiler’s Notes.

Section 501(a) of the Federal Internal Revenue code of 1954 referenced herein is compiled at 26 USCS § 501(a).

Research References and Practice Aids

Northern Kentucky Law Review.

Bales and Korb, A Survey of Kentucky Employment Compensation Law: A Look At Employment Discrimination Claims Brought Under the Kentucky Civil Rights Act, 30 N. Ky. L. Rev. 71 (2003).

344.560. Agencies and departments required to effectuate KRS 344.555.

Each state department and agency which is empowered to extend state financial assistance to any education program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, shall effectuate the provisions of KRS 344.555 with respect to such program or activity by promulgating administrative regulations of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. This section shall not apply to a state department or agency which extends state financial assistance to an education institution if the amount of state financial assistance extended by the state department or agency represents less than two percent (2%) of the total state financial assistance received by the education institution. Compliance with any requirement adopted pursuant to this section shall be effected:

  1. By the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made, and shall be limited in its effect to the particular program, or part thereof, in which the noncompliance has been found; or
  2. By any other means authorized by law.

However, no action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the chief officer of the state department or agency shall file with the committees of the House of Representatives and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty (30) days have elapsed after the filing of such report.

History. Enact. Acts 1990, ch. 462, § 3, effective July 13, 1990.

344.565. Judicial review.

Any final action taken by a department or agency pursuant to KRS 344.560 shall be subject to such judicial review as may otherwise be provided by law for similar action taken by the department or agency on other grounds. In the case of action, not otherwise subject to judicial review, terminating or refusing to grant or to continue financial assistance upon a finding of failure to comply with any requirement imposed pursuant to KRS 344.560 , any funding recipient aggrieved may obtain judicial review of the action in the Franklin Circuit Court.

History. Enact. Acts 1990, ch. 462, § 4, effective July 13, 1990.

344.570. Effect of KRS 344.550 to 344.575 on existing contractual rights.

Nothing in this chapter shall add to or detract from any existing authority with respect to any program or activity under which state financial assistance is extended by way of a contract of insurance or guaranty.

History. Enact. Acts 1990, ch. 462, § 5, effective July 13, 1990.

344.575. Separate living facilities for the two sexes not prohibited.

Nothing contained in KRS 344.550 to 344.575 shall be construed to prohibit any educational institution receiving funds under KRS 344.550 to 344.575 from maintaining separate living facilities for the different sexes.

History. Enact. Acts 1990, ch. 462, § 6, effective July 13, 1990.

Discrimination in Housing

344.600. Complaint on discriminatory housing practice — Investigation.

      1. An aggrieved person may, not later than one (1) year after an alleged discriminatory housing practice has occurred or terminated, file a complaint with the commission alleging a discriminatory housing practice. All other complaints of an alleged discrimination practice must be filed pursuant to the procedure described in KRS 344.200 . The commission, on its own initiative, or the Attorney General may also file a complaint alleging a discriminatory housing practice. (1) (a) 1. An aggrieved person may, not later than one (1) year after an alleged discriminatory housing practice has occurred or terminated, file a complaint with the commission alleging a discriminatory housing practice. All other complaints of an alleged discrimination practice must be filed pursuant to the procedure described in KRS 344.200 . The commission, on its own initiative, or the Attorney General may also file a complaint alleging a discriminatory housing practice.
      2. The complaint shall be in writing and shall contain the information and be in a form required by the commission.
      3. The commission may also investigate housing practices to determine whether a complaint should be brought under this section.
    1. Upon the filing of the discriminatory housing practice complaint:
      1. The commission shall within five (5) days serve written notice upon the aggrieved person acknowledging the filing and advising the aggrieved person of the time limits and choice of forums provided in KRS 344.635 .
      2. The commission shall, not later than ten (10) days after the filing or the identification of an additional respondent under subsection (2) of this section, serve on the respondent a written notice identifying the alleged discriminatory housing practice and advising the respondent of the procedural rights and obligations of respondents under this chapter, together with a copy of the original complaint;
      3. Each respondent shall file, not later than ten (10) days after receipt of notice from the commission, an answer to the complaint; and
      4. The commission shall commence an investigation of the alleged discriminatory housing practice within thirty (30) days of filing the complaint and complete the investigation within one hundred (100) days after the filing of the complaint, unless it is impracticable to do so.
    2. If the commission is unable to complete the investigation within one hundred (100) days after the filing of the complaint, the commission shall notify the complainant and respondent in writing of the reasons for not doing so.
    3. Complaints and answers shall be under oath or affirmation, and may be reasonably and fairly amended at any time.
    1. A person who is not named as a respondent in a complaint, but who is identified as a respondent in the course of investigation, may be joined as an additional or substitute respondent upon written notice, under subsection (1) of this section, to that person, from the commission. (2) (a) A person who is not named as a respondent in a complaint, but who is identified as a respondent in the course of investigation, may be joined as an additional or substitute respondent upon written notice, under subsection (1) of this section, to that person, from the commission.
    2. The notice, in addition to meeting the requirements of subsection (1) of this section, shall explain the basis for the commission’s belief that the person to whom the notice is addressed is properly joined as a respondent.

History. Enact. Acts 1992, ch. 282, § 16, effective July 14, 1992; 1994, ch. 378, § 14, effective July 15, 1994.

NOTES TO DECISIONS

1. Required determination.

Circuit court erred when it determined that the Kentucky Commission on Human Rights was permitted to administratively transfer a nonprofit investigation and probable cause determination to HUD where the Commission decided to administratively dismiss the complaint without having made a probable cause determination, that course of action was clearly at odds with Ky. Rev. Stat. Ann. § 344.600(1)(b)(4), and the Commission provided no explanation of impracticability. Teen Challenge of Ky., Inc. v. Ky. Comm'n on Human Rights, 577 S.W.3d 472, 2019 Ky. App. LEXIS 68 (Ky. Ct. App. 2019).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.605. Conciliation — Agreement — Final investigative report.

  1. During the period beginning with the filing of a discriminatory housing practice complaint and ending with the filing of a charge or a dismissal by the commission, the commission shall, to the extent feasible, engage in conciliation with respect to a complaint.
  2. A conciliation agreement arising out of the conciliation shall be an agreement between the respondent and the complainant, and shall be subject to approval by the commission.
  3. A conciliation agreement may provide for binding arbitration of the dispute arising from the complaint. Any arbitration that results from a conciliation agreement may award appropriate relief, including monetary relief.
  4. Each conciliation agreement shall be made public unless the complainant and respondent otherwise agree and the commission determines that disclosure is not required to further the purposes of this chapter.
    1. At the end of each investigation under this section, the commission shall prepare a final investigative report containing: (5) (a) At the end of each investigation under this section, the commission shall prepare a final investigative report containing:
      1. The names and dates of contacts with witnesses;
      2. A summary and the dates of correspondence and other contacts with the complainant and the respondent;
      3. A summary description of other pertinent records;
      4. A summary of witness statements; and
      5. Answers to interrogatories.
    2. A final report under this paragraph may be amended if additional evidence is later discovered.

History. Enact. Acts 1992, ch. 282, § 17, effective July 14, 1992.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.610. Breach of conciliation agreement.

  1. When the commission has probable cause to believe that a respondent has breached a conciliation agreement arising from a discriminatory housing practice, the commission shall reach an agreement for the respondent to voluntarily come into compliance or file an action in Circuit Court pursuant to KRS 344.665 .
  2. A civil action for breach shall be commenced within ninety (90) days of the commission receiving notice of the breach.

History. Enact. Acts 1992, ch. 282, § 18, effective July 14, 1992.

Research References and Practice Aids

Northern Kentucky Law Review.

Bales and Korb, A Survey of Kentucky Employment Compensation Law: A Look At Employment Discrimination Claims Brought Under the Kentucky Civil Rights Act, 30 N. Ky. L. Rev. 71 (2003).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.615. Release and evidentiary use of conciliation information.

  1. Nothing said or done in the course of conciliation of a discriminatory housing practice may be made public or used as evidence in a subsequent proceeding under this chapter without the written consent of the respondent.
  2. Notwithstanding subsection (1) of this section, the commission shall make available to the aggrieved person and the respondent, at any time, upon request following completion of the commission’s investigation of a discriminatory housing practice, information derived from the investigation and any final investigative report relating to that investigation.

History. Enact. Acts 1992, ch. 282, § 19, effective July 14, 1992.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.620. Civil action for preliminary or temporary relief — Effect.

  1. If the commission concludes at any time following the filing of a discriminatory housing complaint that prompt judicial action is necessary to carry out the purposes of this chapter, the commission may initiate a civil action for appropriate temporary or preliminary relief pending final disposition of the complaint under this section.
  2. The commission shall promptly commence and maintain an action.
  3. Any restraining order or other order granting preliminary or temporary relief shall be issued in accordance with the Kentucky Rules of Civil Procedure.
  4. The commencement of a civil action under this subsection does not affect the initiation or continuation of administrative proceedings under KRS 344.600 , 344.605 , 344.635 , 344.640 , or 344.645 .

History. Enact. Acts 1992, ch. 282, § 20, effective July 14, 1992.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.625. Probable cause determination — Issuance of charge.

  1. The commission shall determine, based on the facts, whether probable cause exists to believe that a discriminatory housing practice made unlawful under this chapter has occurred or is about to occur.
  2. The commission shall make the determination under subsection (1) of this section not later than the one hundredth day after the date a complaint is filed unless:
    1. It is impracticable to make the determination; or
    2. The commission has approved a conciliation agreement relating to the discriminatory housing complaint.
  3. If it is impracticable to make the determination within the time period provided by subsection (2) of this section, the commission shall notify the complainant and respondent in writing of the reasons for the delay.
  4. If the commission determines that probable cause exists to believe that a discriminatory housing practice has occurred or is about to occur, the commission shall, except as provided in subsection (6) of this section, immediately issue a charge on behalf of the aggrieved person for further proceeding under KRS 344.635 .
  5. The charge:
    1. Shall consist of a concise statement of the facts upon which the commission has found probable cause to believe that a discriminatory housing practice has occurred or is about to occur;
    2. Shall be based on the final investigative report; and
    3. Need not be limited to the facts or grounds alleged in the complaint filed under KRS 344.600 .
  6. If the commission determines that the matter involves the legality of any state or local zoning or other land use law or ordinance, the commission shall follow the procedures described in KRS 344.665 .
  7. If the commission determines that no probable cause exists to believe that a discriminatory housing practice has occurred or is about to occur, the commission shall promptly dismiss the complaint. The commission shall make public disclosure of each dismissal at the request of the respondent.
  8. The commission may not issue a charge under this section regarding an alleged discriminatory housing practice after the beginning of the trial of a civil action commenced by the aggrieved party under a federal or state law seeking relief with respect to that discriminatory housing practice.

History. Enact. Acts 1992, ch. 282, § 21, effective July 14, 1992.

NOTES TO DECISIONS

1. Required determination.

In an action alleging that recovery center’s admission requirements discriminated against individuals based on their disability, familial status, and religion, the circuit court erred when it determined that the Kentucky Commission on Human Rights was permitted to administratively transfer the investigation and probable cause determination to HUD by dismissing the case with prejudice, because Ky. Rev. Stat. Ann. § 344.625 required the Commission to address probable cause. Teen Challenge of Ky., Inc. v. Ky. Comm'n on Human Rights, 2018 Ky. App. LEXIS 293 (Ky. Ct. App. Dec. 7, 2018).

Circuit court erred when it determined that the Kentucky Commission on Human Rights was permitted to administratively transfer a nonprofit investigation and probable cause determination to HUD where the Commission decided to administratively dismiss the complaint without having made a probable cause determination, that course of action was clearly at odds with Ky. Rev. Stat. Ann. § 344.600(1)(b)(4), and the Commission provided no explanation of impracticability. Teen Challenge of Ky., Inc. v. Ky. Comm'n on Human Rights, 577 S.W.3d 472, 2019 Ky. App. LEXIS 68 (Ky. Ct. App. 2019).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.630. Service of charge.

After the commission issues a discriminatory housing charge under KRS 344.625 , the commission shall cause a copy thereof, together with information as to how to make an election of an administrative or judicial choice of forum under KRS 344.635 , and the effect of such election, to be served:

  1. On each respondent named in the charge, together with a written notice of opportunity for a hearing at a time and place specified in the notice, unless that election is made; and
  2. On each aggrieved person on whose behalf the discriminatory housing complaint was filed.

History. Enact. Acts 1992, ch. 282, § 22, effective July 14, 1992.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.635. Election of method for securing relief.

When a discriminatory housing charge is filed under KRS 344.625 , a complainant, a respondent, or the aggrieved person on whose behalf the complaint is filed, may elect to have the claims asserted in that charge decided in a civil action under KRS 344.670 , in lieu of an administrative hearing before the commission under KRS 344.640 .

  1. The election shall be made not later than twenty (20) days after the receipt by the electing person of service under KRS 344.630 , from the commission or, in the case of the commission, not later than twenty (20) days after service to the respondent and complainant.
  2. The person making the election shall give written notice of doing so to the commission and to all other complainants and respondents to whom the charge relates.

History. Enact. Acts 1992, ch. 282, § 23, effective July 14, 1992.

NOTES TO DECISIONS

1. Failure to Give Notice.

A university’s failure to comply with this section and give notice to tenants of university housing did not excuse the Commission on Human Rights’ failure to file a civil action in the trial court within the 30 day time period prescribed by KRS 344.670 . Kentucky Comm'n on Human Rights ex rel. Bogale v. Eastern Ky. Univ., 988 S.W.2d 41, 1999 Ky. App. LEXIS 10 (Ky. Ct. App. 1999).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion to Intervene, Form 308.02.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.640. Administrative proceedings.

  1. If a timely election of a judicial or administrative remedy is not made under KRS 344.635 , with respect to a discriminatory housing charge, the commission shall provide an opportunity for an administrative hearing in accordance with the provisions of this chapter and KRS Chapter 13B with respect to the charge issued under KRS 344.625 .
  2. Any resolution of a discriminatory housing charge before a final order under this section shall require the consent of the aggrieved person on whose behalf the discriminatory housing charge is issued.
  3. The provisions of KRS 13B.140 notwithstanding, the commission may not continue administrative proceedings under this section regarding any alleged discriminatory housing practice after the beginning of the trial of a civil action commenced by the aggrieved party under a state or federal law, seeking relief with respect to that discriminatory housing practice.

History. Enact. Acts 1992, ch. 282, § 24, effective July 14, 1992; 1996, ch. 318, § 324, effective July 15, 1996.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.645. Final order of commission — Civil penalty.

  1. If the commission finds that a respondent has engaged or is about to engage in a discriminatory housing practice, the commission shall promptly issue a final order for appropriate relief, which may include actual damages suffered by the aggrieved person and injunctive or other equitable relief. The final order may, to vindicate the public interest, assess a civil penalty against the respondent:
    1. In an amount not exceeding ten thousand dollars ($10,000) if the respondent has not been adjudged to have committed any prior discriminatory housing practice;
    2. In an amount not exceeding twenty-five thousand dollars ($25,000) if the respondent has been adjudged to have committed one (1) other discriminatory housing practice during the five (5) year period ending on the date of the filing of this charge; and
    3. In an amount not exceeding fifty thousand dollars ($50,000) if the respondent has been adjudged to have committed two (2) or more discriminatory housing practices during the seven (7) year period ending on the date of the filing of this charge; except that if the acts constituting the discriminatory housing practice that is the object of the charge are committed by the same natural person who has been previously adjudged to have committed acts constituting a discriminatory housing practice, then the civil penalties set forth in paragraphs (b) or (c) of this subsection may be imposed without regard to the period of time within which any subsequent discriminatory housing practice occurred.
  2. No final order shall affect any contract, sale, encumbrance, or lease consummated before the issuance of the final order and involving a bona fide purchaser, encumbrancer, or tenant without actual notice of the discriminatory housing charge.
  3. If the commission finds that the respondent has not engaged or is not about to engage in a discriminatory housing practice, the commission shall enter a final order dismissing the charge. The commission shall make public disclosure of the dismissal.
  4. The commission shall issue a final order in accordance with the provisions of KRS Chapter 13B.

History. Enact. Acts 1992, ch. 282, § 25, effective July 14, 1992; 1996, ch. 318, § 325, effective July 15, 1996.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.650. Civil action for relief from discriminatory housing practice or breach of conciliation agreement — Time limitation.

  1. An aggrieved person may file a civil action in an appropriate Circuit Court not later than two (2) years after the occurrence or the termination of an alleged discriminatory housing practice, or the breach of a conciliation agreement entered into as the result of an alleged discriminatory housing practice, whichever occurs last, to obtain appropriate relief with respect to the discriminatory housing practice or breach.
  2. The computation of the two (2) year period shall not include any time during which an administrative proceeding under this chapter is pending with respect to a complaint or charge of an alleged discriminatory housing practice. This subsection does not apply to actions arising from a breach of a conciliation agreement entered into as a result of an alleged discriminatory housing practice.
  3. An aggrieved person may file a civil action under this section whether or not a complaint has been filed under KRS 344.600 , and without regard to the status of any such complaint, but:
    1. If the commission has obtained a conciliation agreement with the consent of an aggrieved person, the aggrieved person may not file an action under this section with respect to the alleged discriminatory housing practice which forms the basis for the complaint except for the purposes of enforcing the terms of the conciliation agreement; and
    2. An aggrieved person may not file a civil action under this section with respect to an alleged discriminatory housing practice which forms the basis of a charge issued by the commission if the commission has commenced a hearing.

History. Enact. Acts 1992, ch. 282, § 27, effective July 14, 1992.

NOTES TO DECISIONS

1. Application.

The statute applies only to actions brought by an “aggrieved person” and not to actions brought by the Commission on Human Rights on behalf of aggrieved persons. Kentucky Comm'n on Human Rights ex rel. Bogale v. Eastern Ky. Univ., 988 S.W.2d 41, 1999 Ky. App. LEXIS 10 (Ky. Ct. App. 1999).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Asserting Defenses Under KRS 344.650 , Form 308.05.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Independent Action under KRS 344.650 , Alleging Violation of KRS 344.36, Form 308.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

Caldwell’s Kentucky Form Book, 5th Ed., Synopsis to Chapter 308, Housing Discrimination Complaints.

344.655. Powers of Circuit Court.

Upon application by a person alleging a discriminatory housing practice or a person against whom a discriminatory housing practice is alleged, the Circuit Court may:

  1. Appoint an attorney for the person; or
  2. Authorize the commencement or continuation of a civil action under KRS 344.650 , without the payment of fees, costs, or security, if in the opinion of the court the person is financially unable to bear the cost of such action.

History. Enact. Acts 1992, ch. 282, § 28, effective July 14, 1992.

344.660. Damages and injunctive relief available.

  1. In a civil action under KRS 344.650 , if the Circuit Court finds that a discriminatory housing practice has occurred or is about to occur, the Circuit Court may award to the plaintiff actual and punitive damages, and subject to subsection (3) of this section, may grant as relief, as the court deems appropriate any permanent or temporary injunction, restraining order, or other order including an order enjoining the defendant from engaging in the practice or ordering affirmative action as appropriate.
  2. In a civil action under KRS 344.240 , 344.650 , or 344.665 , the court, in its discretion, may award the prevailing complainant, a reasonable attorneys’ fee and costs. The court, in its discretion, may award the prevailing respondent a reasonable attorneys’ fee and costs if the respondent establishes that the complaint upon which the action was based was brought in bad faith. Whether a party has committed bad faith shall be determined in accordance with Rule 11 of the Kentucky Rules of Civil Procedure. The state shall not be liable in any event for fees and costs.
  3. However, no relief provided under this section shall effect any contract, sale, encumbrance, or lease consummated before the granting of that relief, and involving a bona fide purchaser, encumbrancer, or tenant, without actual notice of the filing of the complaint of a discriminatory housing practice complaint with the commission or the filing of a civil action.

History. Enact. Acts 1992, ch. 282, § 30, effective July 14, 1992.

NOTES TO DECISIONS

Cited:

Grego v. Meijer, Inc., 239 F. Supp. 2d 676, 2002 U.S. Dist. LEXIS 25037 (W.D. Ky. 2002 ); Ky. Dep’t of Corr. v. McCullough, 123 S.W.3d 130, 2003 Ky. LEXIS 180 ( Ky. 2003 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Appellant’s Brief, Form 101.25.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Independent Action under KRS 344.650 , Alleging Violation of KRS 344.36, Form 308.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.665. Institution of civil actions by commission or Attorney General — Powers of court.

  1. The commission or the Attorney General may file a civil action in Circuit Court for appropriate relief if the commission or Attorney General has probable cause to believe that:
    1. Any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any housing right granted by this chapter; or
    2. Any group of persons has been denied any housing right granted by this chapter and the denial raises an issue of general public importance; or
    3. Any state or local zoning or land use law is a discriminatory housing practice. The action shall be brought within eighteen (18) months of the occurrence or termination of the alleged discriminatory practice; or
    4. A conciliation agreement has been breached.
  2. In an action under this section, the court:
    1. May award preventive relief, including a permanent or temporary injunction, restraining order, or other order against the person responsible for a violation to assure the full enjoyment of the rights granted by this chapter;
    2. May award other appropriate relief, including compensatory and punitive damages;
    3. May award a reasonable attorney’s fee and costs to the prevailing party to the same extent allowed in KRS 344.660 . The state shall not be liable in any event for fees and costs; and
    4. May, to vindicate the public interest, assess a civil penalty against the respondent in an amount that does not exceed:
      1. Fifty thousand dollars ($50,000) for a first violation; and
      2. One hundred thousand dollars ($100,000) for a second or subsequent violation.
    5. A person may intervene in an action under this section if the person is:
      1. An aggrieved person to the discriminatory housing practice; or
      2. A party to a conciliation agreement concerning the discriminatory housing practice.

The action shall be brought within ninety (90) days of the commission or Attorney General receiving notice of the breach.

History. Enact. Acts 1992, ch. 282, § 31, effective July 14, 1992.

NOTES TO DECISIONS

Cited:

Ky. Dep’t of Corr. v. McCullough, 123 S.W.3d 130, 2003 Ky. LEXIS 180 ( Ky. 2003 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.670. Civil action by commission on behalf of aggrieved person electing judicial proceeding.

  1. If an election is made under KRS 344.635 for a judicial rather than an administrative proceeding, the commission shall not later than thirty (30) days after the election is made, commence and maintain a civil action on behalf of the aggrieved person in the appropriate Circuit Court seeking relief under this section.
  2. Any aggrieved person with respect to the issues to be determined in a civil action under this section may intervene as of right in that civil action.
  3. If the court finds that a discriminatory housing practice has occurred or is about to occur, the court may grant as relief any relief under KRS 344.660 which a court could grant with respect to a discriminatory housing practice in a civil action under KRS 344.650 . Any relief granted under KRS 344.660 that would accrue to an aggrieved person in a civil action commenced by that aggrieved person under KRS 344.650 shall also accrue to that aggrieved person in a civil action under this section. If monetary relief is sought for the benefit of an aggrieved person who does not intervene in the civil action, the court shall not award relief if that aggrieved person has not complied with discovery orders entered by the court.

History. Enact. Acts 1992, ch. 282, § 32, effective July 14, 1992.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Motion to Intervene, Form 308.02.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.675. Appointment of attorney and award of fees.

  1. In any administrative proceeding brought under KRS 344.640 or 344.645 or any court proceeding arising therefrom, including actions described in KRS 344.240 or any civil action, the commission or the court, as the case may be, upon application of either party, and in its discretion, may:
    1. Appoint an attorney for the person; or
    2. Award a reasonable attorneys’ fee and costs to the prevailing party to the same extent allowed in KRS 344.660 , or both. The state shall not be liable in any event for fees and costs.
  2. The state through the commission’s attorney or the Attorney General shall maintain any civil action on behalf of the complainant or aggrieved party.
  3. Where the parties to an alleged discriminatory housing practice have elected an administrative determination rather than a civil adjudication, the commission staff attorney shall represent the complainant or aggrieved party before the commission.

History. Enact. Acts 1992, ch. 282, § 33, effective July 14, 1992.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

344.680. Denying access to multiple listing service unlawful.

It shall be unlawful to deny any person access to, or membership or participation in, any multiple listing service, real estate brokers’ organization, or other service, organization, or facility relating to the business of selling or renting housing accommodations, or to discriminate against a person in the terms or conditions of access, membership, or participation, on account of race, color, religion, sex, disability, familial status, or national origin.

History. Enact. Acts 1992, ch. 282, § 39, effective July 14, 1992.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Housing Discrimination Complaints, § 308.00.

Penalties

344.990. Conspiracy or violation of confidential records, penalty.

A person who willfully engages in the practices declared unlawful by subsection (6) of KRS 344.250 and 344.280 is guilty of a misdemeanor and shall be fined not more than one hundred dollars ($100), or imprisoned for not more than thirty (30) days, or both.

History. Enact. Acts 1966, ch. 2, Art. 6, § 602.

NOTES TO DECISIONS

1. Retaliation.

Plaintiff could maintain a cause of action against two individuals who, in alleged violation of KRS 344.280 , conspired to retaliate against her for filing a sexual discrimination lawsuit, even though this section makes a willful violation of KRS 344.280 a misdemeanor. Palmer v. International Ass'n of Machinists, 882 S.W.2d 117, 1994 Ky. LEXIS 54 ( Ky. 1994 ).

Research References and Practice Aids

Cross-References.

Designation of offenses, see KRS 532.020 .

Fines for misdemeanors, see KRS 534.040 .

Sentence of imprisonment for misdemeanors, see KRS 532.090 .

CHAPTER 345 Collective Bargaining for Firefighters

345.010. Definitions for chapter.

When used in this chapter:

  1. “Public employer” means a city of the first class or a consolidated local government, or any city that petitions the secretary of the Labor Cabinet to be included by this chapter;
  2. “Firefighter” means an employee of the public employer engaged in serving the public by providing fire protection, including those covered by KRS Chapter 95;
  3. “Labor organization” means any chartered labor organization of any kind in which firefighters participate and which exists for the primary purpose of dealing with employers concerning grievances, labor disputes, wages, rate of pay, hours of employment, or conditions of employment;
  4. “Exclusive representative” means the labor organization which has been designated by the State Labor Relations Board as the representative of the majority of firefighters in appropriate units or has been so recognized by the public employer;
  5. “Board” means the State Labor Relations Board;
  6. “Person” includes one (1) or more individuals, labor organizations, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers;
  7. “Secretary” means the secretary of the Labor Cabinet of the Commonwealth of Kentucky.

History. Enact. Acts 1972, ch. 120, § 3; 1984, ch. 414, § 42, effective July 13, 1984; 1990, ch. 144, § 1, effective July 13, 1990; 1998, ch. 579, § 12, effective July 15, 1998; 2002, ch. 346, § 227, effective July 15, 2002; 2010, ch. 24, § 1868, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Abney v. Winchester, 558 S.W.2d 622, 1977 Ky. App. LEXIS 850 (Ky. Ct. App. 1977).

Opinions of Attorney General.

The Louisville and Jefferson County Air Board does not meet the definition of “public employer” set out in subsection (1) and, as a result, its employees who are firefighters do not meet the requirements of the definition of “fire fighter” set out in subsection (2) and would not be covered by the collective bargaining for firefighters bill set out as KRS Chapter 345. OAG 73-646 .

A city, which was not at the outset covered by the provisions of KRS Chapter 345, which petitions to be included within the chapter, cannot subsequently withdraw that petition of inclusion since the chapter provides that cities with a population of at least 300,000 persons are covered by its terms and provisions and there are no exceptions to such coverage; the chapter does not provide for the withdrawal of a petition for inclusion so a city which has, through its own actions, been included under the chapter, can only look to the General Assembly for a remedy to its present situation. OAG 80-218 .

Where a city and the firefighters of that city are subject to and operating under the provisions of KRS Chapter 345, they may collectively bargain and negotiate with respect to wages, hours of work and other conditions of employment notwithstanding the requirements of KRS 95.500(3). OAG 80-218 .

Research References and Practice Aids

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

345.020. Policy and purpose.

  1. Whereas, the denial by some public employers of the right of firefighters to organize and the refusal by such employers to accept the procedure of collective bargaining leads to various forms of strife and unrest, with the consequent effect of obstructing public business. Unresolved disputes in the public service are injurious to the public, the governmental agencies involved, and the firefighters.
  2. Whereas, experience has proved that protection by law of the right of public employees to organize and bargain collectively safeguards the public business from injury, impairment, or interruptions, and promotes public business by removing certain recognized sources of strife and unrest, by encouraging practices fundamental to the friendly adjustment of disputes arising out of differences as to wages, hours, or other working conditions, and by creating equality of bargaining power between employers and employees.
  3. Whereas, it is hereby declared to be the policy of the State of Kentucky to eliminate the causes of certain substantial obstructions to public business and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by firefighters of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

History. Enact. Acts 1972, ch. 120, § 2.

345.030. Employees’ right to organize for the purpose of collective bargaining.

  1. Firefighters of a city of the first class shall have, and shall be protected in the exercise of, the right of self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing on questions of wages, hours, and other conditions of employment free from interference, restraint, or coercion.
  2. Labor organizations designated by the State Labor Relations Board as the representative of the majority of firefighters in an appropriate unit or recognized by a public employer as the representative of the majority of employees in an appropriate unit shall be the exclusive representative for the employees of such unit for the purpose of collective bargaining with respect to rates of pay, wages, hours, and other conditions of employment.
  3. Labor organizations recognized by a public employer as the exclusive representative or so designated in accordance with the provisions of this chapter shall be responsible for representing the interest of all firefighters in the unit without discrimination.

History. Enact. Acts 1972, ch. 120, § 4; 1990, ch. 144, § 2, effective July 13, 1990.

Opinions of Attorney General.

Where a city and the firefighters of that city are subject to and operating under the provisions of KRS Chapter 345, they may collectively bargain and negotiate with respect to wages, hours of work and other conditions of employment notwithstanding the requirements of KRS 95.500(3). OAG 80-218 .

Research References and Practice Aids

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

345.040. Duty to bargain collectively.

The public employer and such labor organization as has been designated as exclusive representative of firefighters in an appropriate unit, through appropriate officials or their representatives, shall have the authority and the duty to bargain collectively. This duty extends to the obligation to bargain collectively as set forth in subsection (3) of KRS 345.050 .

History. Enact. Acts 1972, ch. 120, § 5.

Research References and Practice Aids

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

345.050. Activities prohibited and duty to bargain in good faith.

  1. Except as provided in KRS 336.130 , public employers, their representatives or their agents are prohibited from:
    1. Interfering, restraining or coercing firefighters in the exercise of the rights guaranteed in KRS 345.030 ;
    2. Dominating or interfering with the formation, existence or administration of any labor organization;
    3. Discriminating in regard to hiring or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization;
    4. Discharging or otherwise discriminating against an employee because he has signed or filed any affidavit, petition or complaint or given any information or testimony under this chapter;
    5. Refusing to bargain collectively in good faith with a labor organization which is the exclusive representative of employees in an appropriate unit, including but not limited to the discussing of grievances with the exclusive representative.
  2. Labor organizations or their agents are prohibited from:
    1. Restraining or coercing:
      1. Firefighters in the exercise of the right guaranteed in subsection (1) of KRS 345.030 , and
      2. A public employer in the selection of his representative for the purposes of collective bargaining or the adjustment of grievances;
    2. Refusing to bargain collectively in good faith with a public employer, if they have been designated in accordance with the provisions of this chapter as the exclusive representative of firefighters in an appropriate unit.
  3. For the purposes of this chapter, to bargain collectively is to carry out in good faith the mutual obligation of the parties, or their representatives; to meet together at reasonable times, including meetings in advance of the budget-making process; to negotiate in good faith with respect to wages, hours and other conditions of employment; to negotiate an agreement; to negotiate any question arising under any agreement; and to execute a written contract incorporating any agreement reached, if requested by either party. The obligation shall not be interpreted to compel either party to agree to a proposal, or require either party to make a concession.

History. Enact. Acts 1972, ch. 120, § 6; 2017 ch. 1, § 12, effective January 9, 2017.

Research References and Practice Aids

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

345.060. Election of exclusive representative.

  1. Whenever in accordance with such regulations and as may be prescribed by the State Labor Relations Board a petition has been filed:
    1. By a firefighter or group of firefighters or any labor organization acting in behalf of 30 percent of the employees who have signed union affiliation cards and the union showing proof of representation:
      1. Wish to be represented for collective bargaining by a labor organization as exclusive representative, or
      2. Assert that the labor organization which has been certified or is currently being recognized by the public employer as bargaining representative is no longer the representative of the majority of employees in the unit; or
    2. By the public employer alleging that one (1) or more labor organizations has presented to it a claim to be recognized as a representative of the majority of firefighters in an appropriate unit;
  2. The board shall decide in each case, in order to assure firefighters the fullest freedom in exercising the rights guaranteed by this chapter, the unit appropriate for the purposes of collective bargaining, based on such factors as community of interest, wages, hours, and other working conditions of the firefighters involved; the history of collective bargaining; and the desires of the firefighters.
  3. An election shall not be directed in any bargaining unit or in any subdivision thereof within which in the preceding twelve (12) month period a valid election has been held. The board shall determine who is eligible to vote in the election and shall establish rules governing the election. In any election where none of the choices on the ballot receives a majority, a runoff shall be conducted, the ballot providing for the selection between the two (2) choices receiving the largest and the second largest number of valid votes cast in the election. A labor organization which receives the majority of the votes cast in an election shall be certified by the board as exclusive representative of all the firefighters in the unit.
  4. Nothing in this or any other law shall be construed to prohibit recognition of a labor organization as the exclusive representative by a public agency by mutual consent.
  5. No election shall be directed by the board in any bargaining unit where there is in force and effect a valid collective bargaining agreement. Provided, however, no collective bargaining agreement shall bar an election upon the petition of persons not parties thereto where more than three (3) years have elapsed since the execution of the agreement or the last timely renewal, whichever was later.

the board shall investigate such petition, and if it has reasonable cause to believe that a question of representation exists, shall provide for an appropriate hearing upon due notice. If the board finds that there is a question of representation, it shall direct an election by secret ballot to determine whether or by which labor organization the firefighters desire to be represented and shall certify the result thereof.

History. Enact. Acts 1972, ch. 120, § 7.

Research References and Practice Aids

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

345.070. Unfair labor practices and remedies therefor — Hearing — Final order — Appeal to Circuit Court.

Violations of the provisions of KRS 345.050 shall be deemed to be unfair labor practices remedial by the board in the following manner.

  1. Whenever it is charged by a public employer or a labor organization that any person has engaged in or is engaging in any unfair labor practices, the board, or any hearing officer designated by the board, shall conduct an administrative hearing in accordance with KRS Chapter 13B.
  2. If upon the preponderance of the evidence presented the board is of the opinion that any person named in the charge has engaged in or is engaging in an unfair labor practice, then it shall issue a final order requiring him to cease and desist from the unfair labor practice, and to take any affirmative action including reinstatement of firefighters with or without back pay, as will effectuate the policies of this chapter. The final order may further require the person to make reports from time to time showing the extent to which he has complied with the order. If upon the preponderance of the evidence presented the board is not of the opinion that the person named in the charge has engaged in or is engaging in the unfair labor practice, then the board shall issue a final order dismissing the complaint. No final order shall issue based upon any unfair labor practice occurring more than six (6) months prior to the filing of the charge with the board, unless the person aggrieved thereby was prevented from filing the charge by reason of service in the Armed Forces, in which event, the six (6) month period shall be computed from the day of his discharge. No final order of the board shall require the reinstatement of any individual as a firefighter who has been suspended or discharged, or the payment to him of any back pay, if the individual was suspended or discharged for cause.
  3. Until a final order has been appealed, the board at any time, upon reasonable notice and in the manner that it deems proper, may modify or set aside, in whole or in part, any final order made or issued by it.
  4. The board or the charging party may petition for the enforcement of the final order and for appropriate temporary relief or restraining order in the Circuit Court for the county in which the violation occurred.
  5. Any person aggrieved by a final order of the board may obtain a review of the final order by filing a petition in the Circuit Court assigned jurisdiction under subsection (4) of this section in accordance with KRS Chapter 13B.

History. Enact. Acts 1972, ch. 120, § 8; 1996, ch. 318, § 326, effective July 15, 1996.

NOTES TO DECISIONS

Cited:

Louisville v. Louisville Professional Firefighters Assn., Local Union No. 345, 813 S.W.2d 804, 1991 Ky. LEXIS 47 ( Ky. 1991 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

345.080. Petition for fact-finding panel upon deadlock — Hearings — Findings — Expenses — Rules.

  1. If after a reasonable period, but in no event less than thirty (30) days, of negotiations over the terms of a new collective bargaining agreement or modifications in an existing agreement the parties to the negotiations are deadlocked, either party or the parties jointly may petition the board, by certified mail, return receipt requested, or by registered mail, to initiate fact finding.
  2. Upon receipt of a petition to initiate fact finding, the secretary shall cause an investigation to determine whether or not the parties are deadlocked in their negotiations. During the course of this investigation, the secretary is empowered to utilize his or her office in an effort to effectuate a settlement between the parties through mediation and conciliation.
  3. Upon completion of the secretary’s investigation, and if a settlement between the parties has still not been reached, the secretary shall within five (5) days appoint a qualified and disinterested person as the impartial chairman of a three (3) man panel to function as the fact finders. In addition to the impartial chairman, the other two (2) members of the panel shall be one (1) member named by the labor organization and one (1) by the employer, parties to the deadlocked negotiations.
  4. Upon consultation with the other members of the panel, the impartial chairman shall establish dates and places for public hearings. Whenever feasible, public hearings shall be held within the jurisdiction in which the employer is located. The panel may subpoena witnesses, and a written transcript of the hearing shall be made. Upon completion of the hearings the panel shall, by majority decision, make written findings of fact and recommendations for solution of the dispute. The panel shall cause all of its written findings, recommendations, and opinions to be served on the employer and labor organization (parties) and same shall be released to the public. Expenses incurred by the three (3) man panel in this section shall be paid by the parties involved in the labor dispute.
  5. The secretary may adopt, promulgate, amend, and rescind such rules and regulations as he or she deems necessary and administratively feasible not inconsistent with the provisions of this chapter to carry out his or her responsibilities over the fact-finding procedures set forth in this section. However, unless the parties agree to extend the time for the hearings, they must be completed with recommendations from the fact-finding panel, within one hundred twenty (120) days from the date the petition to initiate the fact-finding procedure was received by the secretary.

History. Enact. Acts 1972, ch. 120, § 9; 1974, ch. 315, § 72; 1998, ch. 579, § 13, effective July 15, 1998; 2010, ch. 24, § 1869, effective July 15, 2010.

Research References and Practice Aids

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

345.090. Representative of the public employer.

Except as hereinafter provided, when a labor organization has been designated in accordance with the provisions hereof as the exclusive representative of firefighters in an appropriate unit, the chief executive officer of the political subdivision, whether elected or appointed, or his designated authorized representative or authorized representatives, shall represent the public employer in collective bargaining with such employee organization.

History. Enact. Acts 1972, ch. 120, § 10.

345.100. Requirements for an agreement — Enforcement in Circuit Court.

  1. Any agreement reached by the negotiators shall be reduced to writing and shall be executed by both parties.
  2. An agreement between the public employer and a labor organization shall be valid and enforced under its terms when entered into in accordance with the provisions of this chapter and signed by the chief executive officer of the political subdivision or his representative. No publication thereof shall be required to make it effective. The procedure for the making of an agreement between a political subdivision and a labor organization provided by this chapter shall be the exclusive method of making a valid agreement for firefighters represented by a labor organization.
  3. Suits for violation of agreements between a public employer and a labor organization representing firefighters may be brought by the parties to such agreement in the Circuit Court of the county of the employer or in cases where the state is the employer in the Franklin Circuit Court.

History. Enact. Acts 1972, ch. 120, § 11; 1976 (Ex. Sess.), ch. 14, § 278, effective January 2, 1978.

345.110. Public employer to withhold dues and deliver to bargaining unit.

Subject to the requirements set forth in KRS 336.135 , upon the written authorization of any firefighters within a bargaining unit, the public employer shall deduct from the payroll of the public employee the monthly amount of dues as certified by the secretary of the exclusive bargaining representative and shall deliver the same to the treasurer of the exclusive bargaining representative.

History. Enact. Acts 1972, ch. 120, § 12; 2017 ch. 6, § 8, effective January 9, 2017.

345.120. State Labor Relations Board.

  1. There is hereby created and established a State Labor Relations Board to assist in resolving disputes between public employers and firefighters or their labor organization which shall be composed of three (3) members appointed by the Governor, one (1) for a term of two (2) years, one (1) for a term of three (3) years, and one (1) for a term of four (4) years. The Governor shall designate one (1) member to serve as chairman of the board. Thereafter, upon the expiration of the term of any member, members shall be appointed for four (4) year terms by the Governor.
  2. Each member of the board shall have been an elector in this state for at least one (1) year next preceding his or her appointment. Any member may be removed by the Governor for cause, shown in an administrative hearing conducted in accordance with KRS Chapter 13B. The Governor shall fill any vacancy by appointment for the unexpired term. No member shall receive a salary but each member shall be paid fifty dollars ($50) and expenses for each day during which he or she is engaged in the duties of the board. The board is authorized to hold hearings at any place in this state. Any and all expenses incurred by the Labor Relations Board shall be shared by all parties concerned in the dispute.
  3. The board shall appoint employees necessary to carry out the work of the board. All files, records, and documents accumulated by the board shall be kept in offices provided by the board. All decisions shall be made by a majority of the board.
  4. To accomplish the objectives and to carry out the duties prescribed by this chapter, the board may subpoena witnesses; issue subpoenas to require the production of books, papers, records, and documents which may be needed as evidence in any matter under inquiry; and administer oaths and affirmations.
  5. In case of neglect or refusal to obey a subpoena issued to any person, the Circuit Court of the county in which the investigations or the public hearings are taking place, upon application by the board may issue an order requiring the person to appear before the board, any member, or agent, to produce evidence or give testimony about the matter under investigation. A failure to obey a court order may be punished by the court as a contempt.
  6. Any subpoena, notice of hearing, or other process or notice of the board issued under the provisions of this chapter, with the exception of notice requirements for administrative hearings as provided in KRS Chapter 13B, may be served personally, by certified mail, return receipt requested, or by leaving a copy at the principal office or place of residence of the respondent required to be served. A return, made and verified by the individual making service and setting forth the manner of service , is proof of service and a returned post-office receipt, when certified mail is used, is proof of service. All process of any court to which application may be made under the provisions of this chapter may be served in the county in which the persons required to be served reside or may be found.
  7. The board shall, promulgate, amend, or repeal any administrative regulations necessary and administratively feasible to carry out the provisions of this chapter. Public hearings shall be held by the board, pursuant to KRS Chapter 13A, on any proposed administrative regulation of general applicability designed to implement, interpret, or prescribe policy, procedure, or practice requirements under the provisions of this chapter and on any proposed change in an existing administrative regulation.
  8. The board shall be attached to the Labor Cabinet for administrative purposes.

History. Enact. Acts 1972, ch. 120, § 13; 1974, ch. 308, § 60; 1974, ch. 315, § 73; 1976, ch. 299, § 87; 1980, ch. 114, § 97, effective July 15, 1980; 1984, ch. 414, § 43, effective July 13, 1984; 1996, ch. 318, § 327, effective July 15, 1996; 2010, ch. 24, § 1870, effective July 15, 2010.

Opinions of Attorney General.

Two members of the State Labor Relations Board whose terms had expired without their reappointment or the appointment of new members by the Governor could continue to serve in their positions until they were either reappointed or until their successors were appointed and qualified. OAG 76-309 .

Research References and Practice Aids

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

345.130. Firefighter or labor organization not to participate in strike.

No firefighter shall engage in, and no firefighter labor organization shall sponsor or condone any strike.

History. Enact. Acts 1972, ch. 120, § 15.

CHAPTER 346 Compensation of Crime Victims

346.010. Purpose. [Renumbered]

History. Enact. Acts 1976, ch. 263, § 1; 1984, ch. 382, § 16, effective July 13, 1984; 1986, ch. 299, § 1, effective July 15, 1986; renumbered 2017, ch. 74, § 21, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.270 effective June 29, 2017.

346.020. Definitions for chapter. [Renumbered]

History. Enact. Acts 1976, ch. 263, § 2; 1978, ch. 213, § 2, effective June 17, 1978; 1980, ch. 172, § 1, effective July 15, 1980; 1984, ch. 165, § 22, effective July 13, 1984; 1984, ch. 382, § 17, effective July 13, 1984; 1986, ch. 299, § 2, effective July 15, 1986; 1990, ch. 409, § 1, effective July 13, 1990; 1998, ch. 368, § 1, effective July 15, 1998; renumbered 2017, ch. 74, § 28, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.280 effective June 29, 2017.

346.025. Nonresident victims of criminal acts occurring in Kentucky — Limits on operation of statute. [Renumbered]

History. Enact. Acts 1990, ch. 409, § 2, effective July 13, 1990; renumbered 2017, ch. 74, § 29, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.290 effective June 29, 2017.

346.030. Crime Victims Compensation Board. [Repealed]

History. Enact. Acts 1976, ch. 263, § 3; 1998, ch. 606, § 36, effective July 15, 1998; repealed by 2017 ch. 74, § 106, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 263, § 3; 1998, ch. 606, § 36, effective July 15, 1998) was repealed by Acts 2017, ch. 74, § 106, effective June 29, 2017.

346.040. Powers and duties of commission. [Renumbered]

History. Enact. Acts 1976, ch. 263, § 4; 1980, ch. 188, § 179, effective July 15, 1980; 1996, ch. 318, § 328, effective July 15, 1996; 2002, ch. 183, § 23, effective August 1, 2002; 2013, ch. 69, § 2, effective June 25, 2013; renumbered 2017, ch. 74, § 30, effective June 29, 2017.

Compiler’s Notes.

This section was renumbered as KRS 49.300 effective June 29, 2017.

346.050. Eligibility for benefits. [Renumbered]

History. Enact. Acts 1976, ch. 263, § 5; 1986, ch. 299, § 3, effective July 15, 1986; 1990, ch. 409, § 3, effective July 13, 1990; 1998, ch. 426, § 567, effective July 15, 1998; 2005, ch. 99, § 612, effective June 20, 2005; renumbered 2017, ch. 74, § 31, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.310 effective June 29, 2017.

346.055. Victim of hate crime deemed victim of criminally injurious conduct. [Renumbered]

History. Enact. Acts 1998, ch. 606, § 53, effective July 15, 1998; renumbered to § 49.320 by 2017 ch. 74, § 32, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.320 effective June 29, 2017.

346.060. Application for award. [Renumbered]

History. Enact. Acts 1976, ch. 263, § 6; 1978, ch. 297, § 2, effective June 17, 1978; 1980, ch. 172, § 2, effective June 15, 1980; 1986, ch. 299, § 4, effective July 15, 1986; 1990, ch. 409, § 4, effective July 13, 1990; 1998, ch. 606, § 37, effective July 15, 1998; renumbered 2017, ch. 74, § 33, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.330 effective June 29, 2017.

346.070. Limitation on awards. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 263, § 7) was repealed by Acts 1986, ch. 299, § 7, effective July 15, 1986.

346.080. Filing of claim — Investigation — Examination — Hearing — Order — Appeal. [Renumbered]

History. Enact. Acts 1976, ch. 263, § 8; 1990, ch. 409, § 5, effective July 13, 1990; 1996, ch. 318, § 329, effective July 15, 1996; renumbered 2017, ch 74, § 34, effective June 29, 2017.

346.090. Review by full board — Notice. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 263, § 9; 1990, ch. 409, § 6, effective July 13, 1990) was repealed by Acts 1996, ch. 318, § 357, effective July 15, 1996. For present law see KRS 346.080 .

346.100. Failure to perfect claim — Denial. [Renumbered]

History. Enact. Acts 1976, ch. 263, § 10; renumbered 2017, ch. 74, § 35, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.350 effective June 29, 2017.

346.110. Judicial review. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 263, § 11; 1978, ch. 297, § 3, effective June 17, 1978; 1980, ch. 172, § 3, effective July 15, 1980) was repealed by Acts 1996, ch. 318, § 357, effective July 15, 1996. For present law see KRS 346.080(8).

346.120. Emergency payment. [Renumbered]

History. Enact. Acts 1976, ch. 263, § 12; renumbered 2017, ch. 74, § 36, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.360 effective June 29, 2017.

346.130. Awards, findings, and amounts. [Renumbered]

History. Enact. Acts 1976, ch. 263, § 13; 1978, ch. 213, § 1, effective June 17, 1978; 1980, ch. 172, § 4, effective June 15, 1980; 1986, ch. 299, § 5, effective July 15, 1986; 1990, ch. 409, § 7, effective July 13, 1990; 1998, ch. 606, § 38, effective July 15, 1998; 2013, ch. 69, § 4, effective June 25, 2013; renumbered 2017, ch. 74, § 37, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.370 effective June 29, 2017.

346.135. Collection actions against crime victim for debt related to expense covered under KRS 346.130(3) to cease pending resolution of claim submitted to board. [Renumbered]

History. Enact. Acts 2013, ch. 69, § 3, effective June 25, 2013.

346.140. Reduction of award — Determination of victim’s contribution — Basis for denial of claim. [Renumbered]

History. Enact. Acts 1976, ch. 263, § 14; 1980, ch. 172, § 5, effective July 15, 1980; 2013, ch. 69, § 5, effective June 25, 2013; renumbered to § 49.390 by 2017 ch. 74, § 39, effective June 29, 2017.

346.145. Effect of filing false claim. [Renumbered]

History. Enact. Acts 1990, ch. 409, § 8, effective July 13, 1990; renumbered 2017, ch. 74, § 40, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.400 effective June 29, 2017.

346.150. Manner of payment — Annual reconsideration. [Renumbered]

History. Enact. Acts 1976, ch. 263, § 15; renumbered 2017, ch. 74, § 41, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.410 effective June 29, 2017.

346.155. Lump-sum payment to survivors of police officer killed in line of duty. [Renumbered]

History. Enact. Acts 1986, ch. 324, § 1, effective April 4, 1986; 1990, ch. 409, § 9, effective July 13, 1990; renumbered 2017, ch. 74, § 42, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.420 effective June 29, 2017.

346.157. Federal participation. [Renumbered]

History. Enact. Acts 1990, ch. 409, § 10, effective July 13, 1990; renumbered 2017, ch. 74, § 43, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.430 effective June 29, 2017.

346.160. Records of proceedings are public — Confidentiality protected. [Renumbered]

History. Enact. Acts 1976, ch. 263, § 16; renumbered 2017, ch. 74, § 44, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.440 effective June 29, 2017.

346.165. Contracts regarding crime — Money to be paid to board — Disposition. [Renumbered]

History. Enact. Acts 1978, ch. 297, § 1, effective June 17, 1978; renumbered 2017, ch. 74, § 45, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.450 effective June 29, 2017.

346.170. Subrogation. [Renumbered]

History. Enact. Acts 1976, ch. 263, § 17; renumbered 2017, ch. 74, § 46, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.460 effective June 29, 2017.

346.180. Award constitutes debt owed state — Manner of payment. [Renumbered]

History. Enact. Acts 1976, ch. 263, § 18; renumbered 2017, ch. 74, § 47, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.470 effective June 29, 2017.

346.185. Crime victims’ compensation fund. [Renumbered]

History. Enact. Acts 1982, ch. 420, § 1, effective July 15, 1982; 1986, ch. 299, § 6, effective July 15, 1986; 1990, ch. 409, § 11, effective July 13, 1990; 1998, ch. 606, § 42, effective July 15, 1998; 2002, ch. 183, § 24, effective August 1, 2002; renumbered 2017, ch. 74, § 48, effective June 29, 2017.

Compiler's Notes.

This section was renumbered as KRS 49.480 effective June 29, 2017.

346.190. Reciprocal agreements with other states — Provisions — Effect. [Repealed]

HISTORY Enacted 1980 Ky. Acts ch. 172, § 6, effective July 15, 1980; repealed by 2017 ch. 74, § 39, effective June 29, 2017.

346.200. Sexual assault victim assistance fund. [Renumbered]

History. Enact. Acts 2004, ch. 73, § 1, effective April 6, 2004; 2005, ch. 99, § 66, effective June 20, 2005; renumbered 2017, ch. 74, § 45, effective June 29, 2017.

Compiler’s Notes

This section was renumbered as KRS 49.480 effective June 29, 2017.

CHAPTER 347 Persons With Developmental Disabilities

347.010. Legislative findings on services and supports for persons with developmental disabilities — Construction of chapter.

The General Assembly of the Commonwealth of Kentucky hereby finds and declares that:

  1. A comprehensive and outcome-driven system of services and supports provided to persons with developmental disabilities must be designed, coordinated, consistent, and monitored to meet the self-determined needs of those persons as well as to protect their legal and human rights;
  2. The current system of services and supports for persons with developmental disabilities needs substantial improvement in order to provide an array of services including person-driven community-based services and supports;
  3. It is necessary to require:
    1. The identification, development, provision, and evaluation of services and supports for persons with developmental disabilities;
    2. Interagency and intra-agency planning, development, implementation, and evaluation of services and supports that are the most community inclusive, responsive to individual needs, and that assure legal and human rights for equal opportunity;
    3. Establishment of an array of community-based comprehensive services and supports, provided by public and private sectors, that allow persons with developmental disabilities the right to participate in the life of the community, including residential alternatives, employment, and social and recreational activities; and
    4. Funding strategies that promote the development of community-based services and supports that demonstrate:
      1. Flexibility for the person with developmental disabilities;
      2. Distribution of available funds among all interested service providers based on the needs of the person with developmental disabilities; and
      3. Efficiency and accountability to the general public.
  4. The provisions of this chapter shall be construed to protect and promote the continuing development and maintenance of physical, mental, and social skills of persons with developmental disabilities; and
  5. The provisions of this chapter shall not alter requirements and responsibilities mandated under any state or federal act, relieve any organizational unit or administrative body of its duties under those acts, or transfer among state organizations or administrative bodies any responsibilities, powers, or duties mandated by those acts.

History. Enact. Acts 1986, ch. 469, § 1, effective July 15, 1986; 2000, ch. 403, § 5, effective April 14, 2000.

Research References and Practice Aids

Northern Kentucky Law Review.

ADA Amendments Issue: Note: Why the “New ADA” Requires an Individualized Inquiry as to What Qualifies as a “Major Life Activity”, 37 N. Ky. L. Rev. 441 (2010).

ADA Amendments Issue: Note: When Pigs Fly: Does the ADA Cover Individuals with Communicable Diseases such as Novel H1N1 Influenza, “Swine Flu”?, 37 N. Ky. L. Rev. 463 (2010).

347.020. Definitions.

As used in this chapter, unless the context requires otherwise:

  1. “Active treatment” means provision of services as specified in an individualized service plan. These services may include but are not limited to activities, experiences, and therapy which are part of a professionally developed and supervised program of health, social, habilitative, and developmental services;
  2. “Case management services” means all such services to persons with developmental disabilities as will assist them in gaining access to needed social, medical, legal, educational, and other services, and such term includes:
    1. Follow-along services which assure, through a continuing relationship between an agency or provider and a person with a developmental disability and the person’s parent, if the person is a minor, or guardian, if the person has been adjudicated legally disabled, that the changing needs of the person and the family are recognized and appropriately met; and
    2. Coordinated services which provide to persons with developmental disabilities support, access to, and coordination of other services, information on programs and services and monitoring of the person’s progress;
  3. “Habilitation” means the process described in the individualized service plan by which a person is assisted to acquire and maintain physical, mental, and social skills which will enable him to live most efficiently and effectively in the least restrictive individually appropriate environment;
  4. “Individualized service plan (ISP)” means a written plan of service based on an interdisciplinary approach which is revised as needed but no less than annually. The plan shall be developed by the interdisciplinary team and shall contain a statement of:
    1. The nature of the specific mental, physical, social, and developmental needs of the person;
    2. The specific services to be provided under this chapter, those services being provided under other state and federal laws, and a schedule for the provision of said services; and
    3. The least restrictive individually appropriate environment for the provision of services and active treatment;
  5. “Individually appropriate” means responsive to the needs of the person as determined through interdisciplinary assessment and provided pursuant to an individualized service plan;
  6. “Interdisciplinary team (IDT)” means those persons who work most directly with the individual in each of the professions, disciplines, and service areas that provide active treatment, services, and evaluations for the person, including the persons set forth in KRS 347.030(6). Prior to relocation to a more individually appropriate placement in accordance with his individualized service plan, the IDT shall include staff representing the current placement and staff representing the proposed placement;
  7. “Least restrictive environment” means the individually appropriate residence and service delivery setting, including the entire array of residential alternatives as defined by this chapter, in which the person can function most effectively and independently, gaining, to the maximum extent possible, control over his environment, and shall be based solely on his needs as identified in his individualized service plan. This definition shall not be construed to abolish any existing residential or institutional alternatives as defined by this chapter;
  8. “Monitor” means to conduct a systematic, coordinated, objective, qualitative review of services by a body independent of the agencies providing services under this chapter. This body shall include persons with developmental disabilities, parents, guardians, and professionals;
  9. “Person with a developmental disability” means a person with a long-term disability which:
    1. Is attributable to a developmental or physical impairment or combination of developmental and physical impairments, including pervasive developmental disorders;
    2. Is likely to continue indefinitely;
    3. Results in substantial functional limitations in at least three (3) of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, and economic self-sufficiency;
    4. Requires special, generic, or interdisciplinary care and active treatment and services of extended duration; and
    5. Is manifested before the person attains age twenty-two (22);
  10. “Representative” means any individual who can advise and advocate for a person with developmental disabilities and who shall serve at the request and pleasure of such person; provided, however, if the person with developmental disabilities is a minor or is legally disabled and has not requested a representative, the parent or guardian may request a representative to assist on behalf of a person with developmental disabilities;
  11. “Residence” or “residential alternative” means the living space occupied by the person with a developmental disability, including single-person homes, natural family homes, institutional facilities, and all other types of living arrangements; and
  12. “Services” means such residential, developmental, vocational, support and related services, training, and active treatment in the least restrictive, individually appropriate environment to provide for continuing development of independent or interdependent living skills of persons with developmental disabilities. These services include but are not restricted to diagnostic services; child development services; respite care; domestic assistance; consumer-directed attendant care; habilitation and rehabilitation, including behavioral therapies; speech, physical, and occupational therapy; recreational therapy and activities; training for parents, guardians, and care providers as requested by said persons; transportation; equipment; development of language and communication skills; interpreters; family counseling, and case management.

History. Enact. Acts 1986, ch. 469, § 2, effective July 15, 1986; 2002, ch. 162, § 4, effective July 15, 2002.

347.030. Rights of developmentally disabled person.

  1. Rights enumerated in this chapter, including the right to accept or reject services, active treatment and residential alternatives, shall be exercised by:
    1. The person with a developmental disability;
    2. The person’s parent if the person is a minor; or
    3. The person’s guardian if the person has been adjudicated legally disabled in that specific decision-making area.
  2. Each person with a developmental disability shall have the opportunity to reside in the least restrictive, individually appropriate residential alternative located as close as possible to his home community.
  3. Each person with a developmental disability, to the extent it is individually appropriate, shall have the right to:
    1. Interact with nondisabled people in a nontreatment, nonservice oriented setting;
    2. Live with or in close proximity to nondisabled persons; and
    3. Live in a setting which closely approximates those conditions available to nondisabled persons of the same age.
  4. Nothing in subsection (3) of this section shall be construed to abolish any existing residential or institutional alternatives as defined by this chapter.
  5. The ISP shall contain, but not be limited to:
    1. Intermediate and long-range active treatment and service goals, including specific goals to facilitate the development and retention of daily living skills necessary for living in the least restrictive, individually appropriate residential alternative as defined by this chapter, with a projected timetable for their attainment;
    2. The person’s schedule of service activities, including the least restrictive, individually appropriate service settings to be utilized for the implementation of each goal and objective identified; and
    3. The specific services to be offered the person to attain these goals.
  6. The following persons shall have the right to participate in the development of the ISP:
    1. The person with a developmental disability;
    2. The person’s representative;
    3. The person’s guardian if the person has been adjudicated legally disabled; and
    4. The person’s parent if the person is a minor or states no objection to the participation of his parent.
  7. Any person relocated from an institutional to a noninstitutional setting or from a noninstitutional to an institutional setting for whom it is subsequently determined and reflected in his ISP that the initial setting is the individually appropriate environment, shall have the following rights:
    1. To receive a maximum of thirty (30) days of individually appropriate respite care initiated within twenty-four (24) hours of the decision for the person to relocate to the initial setting;
    2. To be placed as soon as possible but no later than thirty (30) days in the initial residential alternative from which he was transferred or any other individually appropriate residential alternative;
    3. To not be placed in an intermediate care nursing facility, skilled nursing facility or mental health facility, unless recommended by the IDT, approved by the person, his parent, if the person is a minor, or guardian, if the person has been adjudicated legally disabled, and supported by documented medical need; and
    4. To be transferred no more than three (3) times within the thirty (30) days allowed for respite care, except in a crisis situation, as defined by the IDT.
  8. Each person with a developmental disability shall have a right to receive least restrictive individually appropriate services, including a daily program of activities outside the residence in accordance with his ISP.
  9. In a manner consistent with the rights of privacy of a person with a developmental disability such a person shall have a right to be referred for medical and dental care and shall have the right to reasonable access to review medical, service and treatment files, to be informed of diagnoses, and to receive a copy of his ISP.
  10. A person who requests services under this chapter or who is identified as a person with a developmental disability, his parent, if the person is a minor, or guardian, if the person has been adjudicated legally disabled, shall be informed orally and in writing of the contents of this chapter, including the rights guaranteed under this chapter.
  11. Rights enumerated in this chapter shall not be construed to replace or limit any other rights, benefits, or privileges, including other statutory and regulatory due process rights and protections.

History. Enact. Acts 1986, ch. 469, § 3, effective July 15, 1986.

347.040. Joint statewide plan to serve developmentally disabled persons.

  1. The secretaries of the Cabinet for Health and Family Services and the Education and Workforce Development Cabinet and the chief state school officer shall jointly develop and implement a statewide plan, with adequate opportunity for public comment, to serve all persons with developmental disabilities not otherwise entitled to and receiving the same services under another state or federal act, which will include provisions for:
    1. Identification and prompt and adequate interdisciplinary assessment;
    2. Case management services; and
    3. Services and residential alternatives as defined by this chapter in the least restrictive, individually appropriate environment.
  2. The first plan and annual updates shall be presented to the Legislative Research Commission which shall refer it to an appropriate committee for review and comment.
  3. The plan shall include:
    1. The number of institution residents on waiting lists for placement in the community;
    2. The number of persons outside institutions on waiting lists for placement in the institution;
    3. The number of persons for whom no placement is made nor services provided because of a lack of community resources;
    4. The number, type, nature, and cost of services necessary for placement to occur;
    5. The status of compliance with the plan;
    6. The cabinets’ specific efforts to increase residential and institutional services and documentation of the success of these efforts; and
    7. The specific plans for new efforts to enhance the opportunities for persons with developmental disabilities to move into less restrictive environments.
  4. The state health plan shall be developed consistently with the plan required under this chapter.

History. Enact. Acts 1986, ch. 469, § 4, effective July 15, 1986; 1992, ch. 27, § 12, effective March 2, 1992; 1994, ch. 209, § 20, effective July 15, 1994; 1998, ch. 426, § 568, effective July 15, 1998; 2005, ch. 99, § 613, effective June 20, 2005; 2006, ch. 211, § 162, effective July 12, 2006; 2009, ch. 11, § 84, effective June 25, 2009.

347.050. Rules and regulations.

The Cabinet for Health and Family Services and the Department of Education shall promulgate and implement rules and regulations for the:

  1. Enhancement and protection of the rights of persons receiving services and active treatment in both the public and private sectors under this chapter, including but not limited to the right to:
    1. Provision of services in the least restrictive, individually appropriate environment;
    2. An individualized service plan;
    3. Privacy and humane service;
    4. Confidentiality, access, referral, and transfer of records;
    5. Monitored active treatment in the least restrictive, individually appropriate environment;
    6. Notice of rights under this chapter; and
    7. A fair, timely, and impartial grievance procedure to resolve grievances concerning identification and evaluation, services and active treatment, residential alternatives, and the protection of the rights of persons with developmental disabilities under this chapter.
  2. Implementation of this chapter providing for the orderly development of services and coordination among organizational units, administrative bodies, and service providers to assure effective provision of services in both the public and private sectors to persons with developmental disabilities.

History. Enact. Acts 1986, ch. 469, § 5, effective July 15, 1986; 1994, ch. 209, § 21, effective July 15, 1994; 1998, ch. 426, § 569, effective July 15, 1998; 2005, ch. 99, § 614, effective June 20, 2005; 2006, ch. 211, § 163, effective July 12, 2006.

347.060. Charge for services.

The Cabinet for Health and Family Services, the Education and Workforce Development Cabinet, and the Department of Education may assess reasonable charges for services rendered under this chapter, based upon a sliding fee scale which takes into account the extensive services required as a result of, and the extraordinary expenses related to, a developmental disability; provided that no charges for services rendered under this chapter may be assessed for compliance with requirements and responsibilities mandated under any state or federal act as provided under subsection (5) of KRS 347.010 .

History. Enact. Acts 1986, ch. 469, § 6, effective July 15, 1986; 1994, ch. 209, § 22, effective July 15, 1994; 1998, ch. 426, § 570, effective July 15, 1998; 2005, ch. 99, § 615, effective June 20, 2005; 2006, ch. 211, § 164, effective July 12, 2006; 2009, ch. 11, § 85, effective June 25, 2009.