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AN ACT relating to occupational disease claims. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
ď˘Section 1. KRS 342.125 is amended to read as follows: 3
(1) Upon motion by any party or upon an administrative law judge's own motion, an 4
administrative law judge may reopen and review any award or order on any of the 5
following grounds: 6
(a) Fraud; 7
(b) Newly-discovered evidence which could not have been discovered with the 8
exercise of due diligence; 9
(c) Mistake; and 10
(d) Change of disability as shown by objective medical evidence of worsening or 11
improvement of impairment due to a condition caused by the injury since the 12
date of the award or order. 13
(2) No claim which has been previously dismissed or denied on the merits shall be 14
reopened except upon the grounds set forth in this section. 15
(3) Except for reopening solely for determination of the compensability of medical 16
expenses, fraud, or conforming the award as set forth in KRS 342.730(1)(c)2[.], or 17
for reducing a permanent total disability award when an employee returns to work, 18
or seeking temporary total disability benefits during the period of an award, no 19
claim shall be reopened more than four (4) years following the date of the original 20
award or original order granting or denying benefits, when such an award or order 21
becomes final and nonappealable, and no party may file a motion to reopen within 22
one (1) year of any previous motion to reopen by the same party. Orders granting or 23
denying benefits that are entered subsequent to an original final award or order 24
granting or denying benefits shall not be considered to be an original order granting 25
or denying benefits under this subsection and shall not extend the time to reopen a 26
claim beyond four (4) years following the date of the final, nonappealable original 27 UNOFFICIAL COPY 25 RS BR 824
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award or original order. 1
(4) Reopening and review under this section shall be had upon notice to the parties and 2
in the same manner as provided for an initial proceeding under this chapter. Upon 3
reopening, the administrative law judge may end, diminish, or increase 4
compensation previously awarded, within the maximum and minimum provided in 5
this chapter, or change or revoke a previous order. The administrative law judge 6
shall immediately send all parties a copy of the subsequent order or award. 7
Reopening shall not affect the previous order or award as to any sums already paid 8
thereunder, and any change in the amount of compensation shall be ordered only 9
from the date of filing the motion to reopen. No employer shall suspend benefits 10
during pendency of any reopening procedures except upon order of the 11
administrative law judge. 12
(5) (a) Upon the application of the affected employee, and a showing of progression 13
of his or her previously-diagnosed occupational pneumoconiosis resulting 14
from exposure to coal dust and development of respiratory impairment due to 15
that pneumoconiosis[ and two (2) additional years of employment in the 16
Commonwealth wherein the employee was continuously exposed to the 17
hazards of the disease], the administrative law judge may review an award or 18
order for benefits attributable to coal-related pneumoconiosis under KRS 19
342.732. An application for review under this subsection shall be made within 20
one (1) year of the date the employee knew or reasonably should have known 21
that a progression of his or her disease and development or progression of 22
respiratory impairment have occurred. Review under this subsection shall 23
include a review of all evidence admitted in all prior proceedings. 24
(b) Benefits awarded as a result of a review under this subsection shall be reduced 25
by the amount of retraining incentive benefits or income benefits previously 26
awarded under KRS 342.732. The amount to be deducted shall be subtracted 27 UNOFFICIAL COPY 25 RS BR 824
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from the total amount awarded, and the remaining amount shall be divided by 1
the number of weeks, for which the award was made, to arrive at the weekly 2
benefit amount which shall be apportioned in accordance with the provisions 3
of KRS 342.316. 4
(6) In a reopening or review proceeding where there has been additional permanent 5
partial disability awarded, the increase shall not extend the original period, unless 6
the combined prior disability and increased disability exceeds fifty percent (50%), 7
but less than one hundred percent (100%), in which event the awarded period shall 8
not exceed five hundred twenty (520) weeks, from commencement date of the 9
original disability previously awarded. The law in effect on the date of the original 10
injury controls the rights of the parties. 11
(7) Where an agreement has become an award by approval of the administrative law 12
judge, and a reopening and review of that award is initiated, no statement contained 13
in the agreement, whether as to jurisdiction, liability of the employer, nature and 14
extent of disability, or as to any other matter, shall be considered by the 15
administrative law judge as an admission against the interests of any party. The 16
parties may raise any issue upon reopening and review of this type of award which 17
could have been considered upon an original application for benefits. 18
(8) The time limitation prescribed in this section shall apply to all claims irrespective of 19
when they were incurred, or when the award was entered, or the settlement 20
approved. However, claims decided prior to December 12, 1996, may be reopened 21
within four (4) years of the award or order or within four (4) years of December 12, 22
1996, whichever is later, provided that the exceptions to reopening established in 23
subsections (1) and (3) of this section shall apply to these claims as well. 24