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AN ACT relating to workers' compensation. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
Section 1. KRS 342.315 is amended to read as follows: 3
(1) For workers who have had injuries or occupational hearing loss, the commissioner 4
shall contract with the University of Kentucky and the University of Louisville 5
medical schools to evaluate workers. For workers who have become affected by 6
occupational diseases, the commissioner shall contract with the University of 7
Kentucky and the University of Louisville medical schools, or other[ physicians 8
otherwise] duly qualified physicians[ as "B" readers who are licensed in the 9
Commonwealth and are board-certified pulmonary specialists]. Referral for 10
evaluation may be made whenever a medical question is at issue. 11
(2) The physicians and institutions performing evaluations pursuant to this section shall 12
render reports encompassing their findings and opinions in the form prescribed by 13
the commissioner. Except as otherwise provided in KRS 342.316, the clinical 14
findings and opinions of the designated evaluator shall be afforded presumptive 15
weight by administrative law judges and the burden to overcome such findings and 16
opinions shall fall on the opponent of that evidence. When administrative law 17
judges reject the clinical findings and opinions of the designated evaluator, they 18
shall specifically state in the order the reasons for rejecting that evidence. 19
(3) The commissioner or an administrative law judge may, upon the application of any 20
party or upon his or her own motion, direct appointment by the commissioner, 21
pursuant to subsection (1) of this section, of a medical evaluator to make any 22
necessary medical examination of the employee. Such medical evaluator shall file 23
with the commissioner within fifteen (15) days after such examination a written 24
report. The medical evaluator appointed may charge a reasonable fee not exceeding 25
fees established by the commissioner for those services. 26
(4) Within thirty (30) days of the receipt of a statement for the evaluation, the employer 27 UNOFFICIAL COPY 25 RS BR 825
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or carrier shall pay the cost of the examination. Upon notice from the commissioner 1
that an evaluation has been scheduled, the insurance carrier shall forward within 2
seven (7) days to the employee the expenses of travel necessary to attend the 3
evaluation at a rate equal to that paid to state employees for travel by private 4
automobile while conducting state business. 5
(5) Upon claims in which it is finally determined that the injured worker was not the 6
employee at the time of injury of an employer covered by this chapter, the special 7
fund shall reimburse the carrier for any evaluation performed pursuant to this 8
section for which the carrier has been erroneously compelled to make payment. 9
(6) Not less often than annually the designee of the secretary of the Cabinet for Health 10
and Family Services shall assess the performance of the medical schools and render 11
findings as to whether evaluations conducted under this section are being rendered 12
in a timely manner, whether examinations are conducted in accordance with 13
medically recognized techniques, whether impairment ratings are in conformity 14
with standards prescribed by the "Guides to the Evaluation of Permanent 15
Impairment," and whether coal workers' pneumoconiosis examinations are 16
conducted in accordance with the standards prescribed in this chapter. 17
(7) The General Assembly finds that good public policy mandates the realization of the 18
potential advantages, both economic and effectual, of the use of telehealth. The 19
commissioner may, to the extent that he or she finds it feasible and appropriate, 20
require the use of telehealth, as defined in KRS 211.332, in the independent medical 21
evaluation process required by this chapter. 22
Section 2. KRS 342.316 is amended to read as follows: 23
(1) (a) The employer liable for compensation for occupational disease shall be the 24
employer in whose employment the employee was last exposed to the hazard 25
of the occupational disease. During any period in which this section is 26
applicable to a coal mine, an operator who acquired it or substantially all of its 27 UNOFFICIAL COPY 25 RS BR 825
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assets from a person who was its operator on and after January 1, 1973, shall 1
be liable for, and secure the payment of, the benefits which would have been 2
payable by the prior operator under this section with respect to miners 3
previously employed in the mine if it had not been acquired by such later 4
operator. At the same time, however, this subsection does not relieve the prior 5
operator of any liability under this section. Also, it does not affect whatever 6
rights the later operator might have against the prior operator. 7
(b) The time of the beginning of compensation payments shall be the date of the 8
employee's last injurious exposure to the cause of the disease, or the date of 9
actual disability, whichever is later. 10
(2) The procedure with respect to the giving of notice and determination of claims in 11
occupational disease cases and the compensation and medical benefits payable for 12
disability or death due to the disease shall be the same as in cases of accidental 13
injury or death under the general provisions of this chapter, except that notice of 14
claim shall be given to the employer as soon as practicable after the employee first 15
experiences a distinct manifestation of an occupational disease in the form of 16
symptoms reasonably sufficient to apprise the employee that he or she has 17
contracted the disease, or a diagnosis of the disease is first communicated to him or 18
her, whichever shall first occur. 19
(3) The procedure for filing occupational disease claims shall be as follows: 20
(a) The application for resolution of claim shall set forth the complete work 21
history of the employee with a concise description of injurious exposure to a 22
specific occupational disease, together with the name and addresses of the 23
employer or employers with the approximate dates of employment. The 24
application shall also include at least one (1) written medical report 25
supporting his or her claim. This medical report shall be made based on[on 26
the basis of] clinical or X-ray examination performed in accordance with 27 UNOFFICIAL COPY 25 RS BR 825
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accepted medical standards and shall contain full and complete statements of 1
all examinations performed and the results thereof. The report shall be made 2
by a duly-licensed physician. The commissioner shall promulgate 3
administrative regulations which prescribe the format of the medical report 4
required by this section and the manner in which the report shall be 5
completed. 6
1. For coal-related occupational pneumoconiosis claims, each clinical 7
examination shall include a chest X-ray interpretation by a National 8
Institute of Occupational Safety and Health (NIOSH) certified "B" 9
reader. The chest X-ray upon which the report is made shall be filed 10
with the application as well as spirometric tests when pulmonary 11
dysfunction is alleged. 12
2. For other compensable occupational pneumoconiosis claims, each 13
clinical examination shall include a chest X-ray examination and 14
appropriate pulmonary function tests. 15
(b) To be admissible, medical evidence offered in any proceeding under this 16
chapter for determining a claim for occupational pneumoconiosis resulting 17
from exposure to coal dust shall comply with accepted medical standards as 18
follows: 19
1. Chest X-rays shall be of acceptable quality with respect to exposure and 20
development and shall be indelibly labeled with the date of the X-ray 21
and the name and Social Security number of the claimant. Physicians' 22
reports of X-ray interpretations shall: identify the claimant by name and 23
Social Security number; include the date of the X-ray and the date of the 24
report; classify the X-ray interpretation using the latest ILO 25
Classification and be accompanied by a completed copy of the latest 26
ILO Classification report. Only interpretations by National Institute of 27 UNOFFICIAL COPY 25 RS BR 825
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Occupational Safety and Health (NIOSH) certified "B" readers shall be 1
admissible. 2
2. Spirometric testing shall be conducted in accordance with the standards 3
recommended in the "Guides to the Evaluation of Permanent 4
Impairment" and the 1978 ATS epidemiology standardization project 5
with the exception that the predicted normal values for lung function 6
shall not be adjusted based upon the race of the subject. The FVC or the 7
FEV1 values shall represent the largest of such values obtained from 8
three (3) acceptable forced expiratory volume maneuvers as corrected to 9
BTPS (body temperature, ambient pressure, and saturated with water 10
vapor at these conditions) and the variance between the two (2) largest 11
acceptable FVC values shall be either less than five percent (5%) of the 12
largest FVC value or less than one hundred (100) milliliters, whichever 13
is greater. The variance between the two (2) largest acceptable FEV1 14
values shall be either less than five percent (5%) of the largest FEV1 15
value or less than one hundred (100) milliliters, whichever is greater. 16
Reports of spirometric testing shall include a description by the 17
physician of the procedures utilized in conducting such spirometric 18
testing and a copy of the spirometric chart and tracings from which 19
spirometric values submitted as evidence were taken. If it is shown that 20
the spirometric testing is not valid due to inadequate cooperation or poor 21
effort on the part of the claimant, the claimant's right to take or 22
prosecute any proceedings under this chapter shall be suspended until 23
the refusal or obstruction ceases. No compensation shall be payable for 24
the period during which the refusal or obstruction continues. 25
3. The commissioner shall promulgate administrative regulations pursuant 26
to KRS Chapter 13A as necessary to effectuate the purposes of this 27 UNOFFICIAL COPY 25 RS BR 825
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section. The commissioner shall periodically review the applicability of 1
the spirometric test values contained in the "Guides to the Evaluation of 2
Permanent Impairment" and may by administrative regulation substitute 3
other spirometric test values which are found to be more closely 4
representative of the normal pulmonary function of the coal mining 5
population. 6
4. The procedure for determination of occupational disease claims shall be 7
as follows: 8
a. Immediately upon receipt of an application for resolution of claim, 9
the commissioner shall notify the responsible employer and all 10
other interested parties and shall furnish them with a full and 11
complete copy of the application. 12
b. The commissioner shall assign the claim to an administrative law 13
judge and shall promptly refer the employee to a physician or 14
medical facility as the commissioner may select for 15
examination[a duly qualified "B" reader physician who is licensed 16
in the Commonwealth and is a board-certified pulmonary 17
specialist as set forth pursuant to KRS 342.315 and 342.794(1)]. 18
The report from this examination shall be provided to all parties of 19
record. The employee shall not be referred by the commissioner 20
for examination within two (2) years following any prior referral 21
for examination for the same disease. 22
c. The commissioner shall develop a procedure to annually audit the 23
performance of physicians and facilities that are selected to 24
perform examinations pursuant to this section. The audit shall 25
include an evaluation of the physician and facility with respect to 26
the timeliness and completeness of the reports and the frequency at 27 UNOFFICIAL COPY 25 RS BR 825
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which the physician's classification of an X-ray differs from those 1
of the other physicians of that X-ray. The commissioner shall 2
remove a physician or facility from selection consideration if the 3
physician or facility consistently renders incomplete or untimely 4
reports or if the physician's interpretations of X-rays are not in 5
conformity with the readings of other physicians of record at least 6
fifty percent (50%) of the time. The report required under this 7
subdivision shall be provided to the Interim Joint Committee on 8
Economic Development and Workforce Investment on or before 9
July 1, 2019, and on or before July 1 of each year thereafter. 10
d. In coal workers' pneumoconiosis claims, if the physician selected 11
by the commissioner interprets an X-ray as positive for 12
complicated coal workers' pneumoconiosis, the commissioner 13
shall refer the employee to the facility at which the claimant was 14
previously evaluated for a computerized tomography scan in order 15
to verify the findings. The computerized tomography scan shall be 16
interpreted by the facility and a report shall be filed with the 17
commissioner. The employer, insurer, or payment obligor shall 18
pay the cost of the examination pursuant to the medical fee 19
schedule. The administrative law judge may rely upon the findings 20
in the report in accepting or rejecting ILO radiographic evidence 21
of the disease required under KRS 342.732 for benefit 22
determination. 23
e. Within forty-five (45) days following the notice of filing an 24
application for resolution of claim, the employer or carrier shall 25
notify the commissioner and all parties of record of its acceptance 26
or denial of the claim. A denial shall be in writing and shall state 27 UNOFFICIAL COPY 25 RS BR 825
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the specific basis for the denial. 1
f. The administrative law judge shall conduct such proceedings as 2
are necessary to resolve the claim and shall have authority to grant 3
or deny any relief, including interlocutory relief, to order 4
additional proof, to conduct a benefit review conference, or to take 5
such other action as may be appropriate to resolve the claim. 6
g. Unless a voluntary settlement is reached by the parties, or the 7
parties agree otherwise, the administrative law judge shall issue a 8
written determination within sixty (60) days following a hearing. 9
The written determination shall address all contested issues and 10
shall be enforceable under KRS 342.305. 11
h. Within thirty (30) days of the receipt of the statement for the 12
evaluation, the employer, insurer, or payment obligor shall pay the 13
cost of the examination. Upon notice from the commissioner that 14
an evaluation has been scheduled, the employer, insurer, or 15
payment obligor shall forward the expenses of travel necessary to 16
attend the evaluation at the state employee reimbursement rates to 17
the employee within seven (7) days. However, if the employee has 18
alleged a pulmonary dysfunction but has not filed spirometric 19
evidence as required by paragraph (a) of this subsection at the time 20
the evaluation is scheduled by the commissioner, the employee 21
will be responsible for fifty percent (50%) of the cost of the 22
evaluation. 23
5. The procedure for appeal from a determination of an administrative law 24
judge shall be as set forth in KRS 342.285. 25
(4) (a) The right to compensation under this chapter resulting from an occupational 26
disease shall be forever barred unless a claim is filed with the commissioner 27 UNOFFICIAL COPY 25 RS BR 825
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within three (3) years after the last injurious exposure to the occupational 1
hazard or after the employee first experiences a distinct manifestation of an 2
occupational disease in the form of symptoms reasonably sufficient to apprise 3
the employee that he or she has contracted the disease, whichever shall last 4
occur; and if death results from the occupational disease within that period, 5
unless a claim therefor be filed with the commissioner within three (3) years 6
after the death; but that notice of claim shall be deemed waived in case of 7
disability or death where the employer, or its insurance carrier, voluntarily 8
makes payment therefor, or if the incurrence of the disease or the death of the 9
employee and its cause was known to the employer. However, the right to 10
compensation for any occupational disease shall be forever barred, unless a 11
claim is filed with the commissioner within five (5) years from the last 12
injurious exposure to the occupational hazard, except that, in cases of 13
radiation disease, asbestos-related disease, or a type of cancer specified in 14
KRS 61.315(11)(b), a claim must be filed within twenty (20) years from the 15
last injurious exposure to the occupational hazard. 16
(b) Income benefits for the disease of pneumoconiosis resulting from exposure to 17
coal dust or death therefrom shall not be payable unless the employee has 18
been exposed to the hazards of such pneumoconiosis in the Commonwealth of 19
Kentucky over a continuous period of not less than two (2) years during the 20
ten (10) years immediately preceding the date of his or her last exposure to 21
such hazard, or for any five (5) of the fifteen (15) years immediately 22
preceding the date of such last exposure. 23
(5) The amount of compensation payable for disability due to occupational disease or 24
for death from the disease, and the time and manner of its payment, shall be as 25
provided for under the general provisions of the Workers' Compensation Act, but: 26
(a) In no event shall the payment exceed the amounts that were in effect at the 27 UNOFFICIAL COPY 25 RS BR 825
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time of the last injurious exposure; 1
(b) The time of the beginning of compensation payments shall be the date of the 2
employee's last injurious exposure to the cause of the disease, or the date of 3
actual disability, whichever is later; and 4
(c) In case of death where the employee has been awarded compensation or made 5
timely claim within the period provided for in this section, and an employee 6
has suffered continuous disability to the date of his or her death occurring at 7
any time within twenty (20) years from the date of disability, his or her 8
dependents, if any, shall be awarded compensation for his or her death as 9
provided for under the general provisions of the Workers' Compensation Act 10
and in this section, except as provided in KRS 342.750(6). 11
(6) If an autopsy has been performed, no testimony relative thereto shall be admitted 12
unless the employer or its representative has available findings and reports of the 13
pathologist or doctor who performed the autopsy examination. 14
(7) No compensation shall be payable for occupational disease if the employee at the 15
time of entering the employment of the employer by whom compensation would 16
otherwise be payable, falsely represented himself or herself, in writing, as not 17
having been previously disabled, laid-off, or compensated in damages or otherwise, 18
because of the occupational disease, or failed or omitted truthfully to state to the 19
best of his or her knowledge, in answer to written inquiry made by the employer, 20
the place, duration, and nature of previous employment, or, to the best of his or her 21
knowledge, the previous state of his or her health. 22
(8) No compensation for death from occupational disease shall be payable to any 23
person whose relationship to the deceased, which under the provisions of this 24
chapter would give right to compensation, arose subsequent to the beginning of the 25
first compensable disability, except only for after-born children of a marriage 26
existing at the beginning of such disability. 27 UNOFFICIAL COPY 25 RS BR 825
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(9) Whenever any claimant misconceives his or her remedy and files an application for 1
adjustment of claim under the general provisions of this chapter and it is 2
subsequently discovered, at any time before the final disposition of the cause, that 3
the claim for injury, disability, or death which was the basis for his or her 4
application should properly have been made under the provisions of this section, 5
then the application so filed may be amended in form or substance, or both, to 6
assert a claim for injury, disability, or death under the provisions of this section, and 7
it shall be deemed to have been so filed as amended on the date of the original filing 8
thereof, and compensation may be awarded that is warranted by the whole evidence 9
pursuant to the provisions of this chapter. When amendment of this type is 10
submitted, further or additional evidence may be heard when deemed necessary. 11
Nothing this section contains shall be construed to be or permit a waiver of any of 12
the provisions of this chapter with reference to notice of time for filing of a claim, 13
but notice of filing a claim, if given or done, shall be deemed to be a notice of filing 14
of a claim under provisions of this chapter, if given or done within the time required 15
by this subsection. 16
(10) When an employee has an occupational disease that is covered by this chapter, the 17
employer in whose employment he or she was last injuriously exposed to the hazard 18
of the disease, and the employer's insurance carrier, if any, at the time of the 19
exposure, shall alone be liable therefor, without right to contribution from any prior 20
employer or insurance carrier, except as otherwise provided in this chapter. 21
(11) (a) For claims filed on or before June 30, 2017, income benefits for coal-related 22
occupational pneumoconiosis shall be paid fifty percent (50%) by the 23
Kentucky coal workers' pneumoconiosis fund as established in KRS 342.1242 24
and fifty percent (50%) by the employer in whose employment the employee 25
was last exposed to the hazard of that occupational disease. 26
(b) Income benefits for coal-related occupational pneumoconiosis for claims filed 27 UNOFFICIAL COPY 25 RS BR 825
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after June 30, 2017, shall be paid by the employer in whose employment the 1
employee was last exposed to the hazards of coal workers' pneumoconiosis. 2
(c) Compensation for all other occupational disease shall be paid by the employer 3
in whose employment the employee was last exposed to the hazards of the 4
occupational disease. 5
(12) A concluded claim for benefits by reason of contraction of coal workers' 6
pneumoconiosis in the severance or processing of coal shall bar any subsequent 7
claim for benefits by reason of contraction of coal workers' pneumoconiosis, unless 8
there has occurred in the interim between the conclusion of the first claim and the 9
filing of the second claim at least two (2) years of employment wherein the 10
employee was continuously exposed to the hazards of the disease in the 11
Commonwealth. 12
Section 3. KRS 342.794 is amended to read as follows: 13
(1) The commissioner shall maintain a list of duly qualified "B" reader physicians [who 14
are licensed in the Commonwealth and are board-certified pulmonary specialists, 15
]currently certified by the National Institute of Occupational Safety and Health 16
(NIOSH) who have agreed to[ perform pulmonary examinations,] interpret chest X-17
rays[,] and review other medical evidence pursuant to KRS 342.316 for a fee to be 18
fixed by the commissioner and paid by the Kentucky coal workers' pneumoconiosis 19
fund or the carrier, whichever is the appropriate payment obligor, the provisions of 20
KRS 342.1242 notwithstanding, for claims filed on or before June 30, 2017, and by 21
the employer for claims filed after June 30, 2017. 22
(2) "'B' reader" means a physician who has demonstrated proficiency in evaluating 23
chest roentgenograms for roentgenographic quality and in the use of the ILO 24
classification for interpreting chest roentgenograms for pneumoconiosis and other 25
diseases by taking and passing a specially designed proficiency examination given 26
on behalf of the National Institute of Occupational Safety and Health (NIOSH) or 27 UNOFFICIAL COPY 25 RS BR 825
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by the Appalachian Laboratory for Occupational Safety and Health (ALOSH), or 1
successors.[ 2
(3) "Board-certified pulmonary specialist" means a physician licensed in the 3
Commonwealth who is board-certified in internal medicine with a certification in 4
the subspecialty of pulmonary medicine by the American Board of Internal 5
Medicine.] 6