4-1-1 on Comp: KY Workers’ Comp Reform

Bruce Burk

Frankfort, KY (WorkersCompensation.com) – A new Kentucky Supreme Court Case has prompted the Kentucky legislature to pass a workers’ compensation reform bill. HB 2, which has been praised by many, is meant to address constitutional issues raised by the case Parker v. Webster County Coal. Here are a list of some of the reforms addressed by the bill, along with commentary on how they may affect workers’ comp claims in Kentucky.

  • Claims for permanent partial disability are now paid for 780 weeks. We are seeing more and more extensions on the time limits for these types of benefits, where the courts feel that the legislature has drawn artificial timelines. However, this extension will likely only apply to new dates of accidents.
  • The legislation limits payments for drug testing based on the level of risks to patients. However, if a test shows positive results, additional tests can be requested. This addition is likely to prohibit abuse by carriers to require claimants to frequently drug test. This is regarding ongoing medical treatment as opposed to test in connection with Drug Free Workplaces, which this does not appear to affect.
  • There is a portion of the bill that allows for a waiver of a utilization review upon agreement of the parties. This is part of a longstanding effort to encourage parties not to litigate and reach resolutions amicably without court intervention.
  • The legislation orders that a guideline to be created regarding pain management. This is largely needed in many states. Pain management is not monolithic and many pain management doctors can go about the process completely differently. Doctors differ on how long conservative treatment should be given before more significant recommendations are offered. A guideline can help alleviate this by putting together how long certain injuries take to heal, what the projected MMI dates are, and what kind of treatment the average patient needs for different types of injuries.
  • The new law makes changes regarding the discount rate that can be used when settling cases. The discount rate can result in litigation by itself, because it can substantially affect the value of permanent total disability. Guidelines from the legislature can possibly assist in preventing some of that litigation.
  • A portion of the bill increases the maximum average weekly wage for TTP/TTD/PT/PPD claims. Max comp rates seem to increase gradually over time. These increases are typically tied to the date of accident and will increase the amount of money a claimant can obtain if they have a high average weekly wage.
  • The bill also adds statutes of limitations for filing cumulative trauma claims: Two years from the date a doctor informs the patient that the condition is work-related, or five years from the date of last exposure. These claims, often called repetitive trauma claims, largely turn on the mechanism of injury and the length of exposure. Obviously the statute cannot run of the alleged mechanism of injury is something the claimant continues to work with and is still employed. This statute of limitations is reasonable. Most repetitive trauma injuries should manifest in an observable condition within five years of exposure to the mechanism of injury.

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