Workers’ Compensation: Critical Legislation and Case Law Update – Kentucky
Good News, Bad News, and Very Bad News
Good News: Lower Interest Rates on Back Due Benefits
HB223 passed last year and became effective on 6/28/17. The interest rate on back due indemnity benefits payable before 6/26/17 is a whopping 12%. The interest rate on benefits payable after 6/28/17 is a more reasonable 6%.
GOOD NEWS: ELECTRONIC FILING
The Department of Workers’ Claims’ Litigation Management System (LMS) was introduced in 2017. As of 7/1/17 all claims must be filed electronically through LMS. This will save a lot of time, money and trees.
Bad News: Claims for Death Benefits Can Be Filed After Settlements
In the State Supreme Court case Family Dollar v. Mamie Baytos, Mr. Baytos tore his aortic artery at work. He settled his claim full and final and then died a year later as a result of the torn artery. His Widow, Mrs. Mamie Baytos, filed a motion to reopen the claim, and received an award of death benefits, despite the previous settlement. The Kentucky Supreme Court affirmed the death benefit award, and held that Kentucky workers’ compensation death benefits are not derivative of the injured workers’ claim, but instead are directly derivative of a work-related death, and therefore not covered on a prior settlement. Issues to be resolved:
- Does the two year statute of limitations apply post settlement?
- Does a death benefit recipient forfeit his/her tort rights against the employer?
- Can claimants ever waive the rights of estates and death benefit recipients with full and final settlements?
Very Bad News: The Return of Indemnity Benefits for Life
In 2017 Kentucky suffered a devastating set-back from the State Supreme Court holding in Parker v. Webster County. Coal (Dotiki Mine), LLC. In this incredible opinion the Court reversed itself and found KRS 342.730(4), which essentially terminated indemnity benefits at social security retirement age to be unconstitutional. The Court then doubled down by refusing to stay enforcement of the decision pending the outcome of a petition of certiorari to the U.S. Supreme Court.
As a result, effective immediately, indemnity benefits for permanent total disability are life-long, and PPD indemnity extends for the full 425 or 520 week periods regardless of the claimant’s drawing of Social Security. The only way to redress this horrific decision is for the state legislature to revise the statute, or for the U.S. Supreme Court to reverse the state holding.
For more information or questions on how this pertains to cases you are handling please e-mail the author here.