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HB 992/LM (BR 2320) - G. Stumbo, I. Branham
AN ACT relating to workers' compensation.
Amend various sections of KRS Chapter 342 to delete language excluding the effects of the natural aging process from the definition of injury; adds language stating that changes characteristic of natural aging are not considered an injury unless work or a work related injury or trauma speeds up the aging process; add definition of "miner" meaning any person employed in the severance and processing of coal at a mine or coal processing facility; permit the commissioner to contract with a third party administrator to conduct utilization review appeals or reconsideration, with requirement that employers or carriers pay the costs of the utilization review; exclude funding of utilization review contracts and services from general departmental funding under KRS 342.122; set statute of limitation for reopening claims at 6 years from the date of award or order denying benefits, unless reopening to make certain determinations specified in statute, such as: compensability of medical expenses, fraud, conforming an award, reducing permanent total disability award when an employee returns to work or seeks temporary total disability (TTD) benefits during the period of an award; or limits reopening to 2 years after the last payment of benefits, which ever occurs first; prohibit any party from reopening a claim within 1 year of any previous motion to reopen; specify that reopening provisions are remedial and apply to all claims, regardless of date of injury or last exposure, or time of award or settlement, prohibit reopening of claim that has been barred; specify staggered terms for members of the workers' compensation board; delete language abolishing the workers' compensation board on June 30, 2000; require weekly benefit amounts, to be greater than $100 in order for lump sum payments to be approved after a settlement agreement, unless the employee has another source of income during the disability; require the commissioner to set the discount rate to be used for lump sum payments by Jan. 1 of each year starting in 2001, specify that the rate to be used in the succeeding year will be based at 0.0005% below the interest rate pay for 10 year Treasury notes as of August the preceding year; retain current penalties, including a fine ranging from $1 to $5,000 per violation, or revocation of certificate of authority for carriers or self-insureds if a pattern of violation is found to exist, also requires an arbitrator or administrative law judge (ALJ) to impose a penalty to be paid to the employee as set forth in KRS 342.040, and adds a penalty of 15% of past due income benefits and costs of proceedings under KRS 342.310; require an arbitrator or ALJ to impose a penalty up to $5,000 to be paid to the employee, if the employee proves that the carrier or self-insured delayed the delivery of needed medical services or denied liability for needed medical services without reasonable grounds; permit commissioner to assign claims where the employee has returned to work to an arbitrator, and claims where the employee has not returned to work to an ALJ; specify that arbitrators and ALJs will exchange information about the claims as required under administrative regulations; specify that in claims assigned to an ALJ under section 6 of this Act, the prehearing conference shall proceed under KRS 342.275 (de novo hearing); occupational disease claims will be assigned to ALJs, and unless there is a voluntary settlement reached by both parties, an ALJ will render an award, order or decision within 60 days of the final hearing unless the parties mutually agree to an extension of the deadline, the award, order or decision will address all contested issues and be enforceable under KRS 342.305, appeal from an ALJ decision is set forth under KRS 342.275; attorney fees for an original claim have the following limits: 20% of the first $25,000, 15% of the second $10,000, and 5% of the remaining award, but the total attorney's fee shall not exceed $12,000, the fee shall be paid by the employee; delete language on attorney fees for an employee appeal; on an employer appeal, an ALJ shall consider the services rendered before an ALJ when assessing the fee to be paid under this section; attorney-client contracts signed after the effective date of this Act shall comply with new fee requirements; motion for approval of attorney's fee shall be submitted 30 days after the finality of the claim; attorney fees for employers are capped at $12,000, and may be paid periodically while the claim is being prosecuted, and the payments need not be approved until the claim is resolved; delete language authorizing nonattorney representation for employees; limit enhanced income benefits payable under KRS 342.715, to 52 weeks for vocational rehabilitation training; permit an employee who completes a retraining program and accepts a bona fine offer for employment, in a field for which he has been trained, that is more than 50 miles away from his or her usual residence, to be paid a lump sum for relocation in the amount of $3,000, without discounting, from the balance of the award, but deducted in equal amounts from weekly benefits payments otherwise due under the award; set out calculations of permanent total disability payments for an employee enrolled as a full time student in a vocational rehabilitation program; change grid factors used to determine disability ratings; prescribe new method for determining permanent partial disability (PPD) payments; provide that employees who do not return to work at the same or greater wages than received prior to the injury will receive PPD benefit that and double the amount they would have received if they had returned to work at the same or greater wages, if the employee does not retain the physical capacity to return to work, provide that benefit payments will be 3 times the amount they would have been if the employee had been able to return to work at the same or greater wages; add age and education factor to be multiplier to the income multiplier when applicable; delete language terminating income benefits when an employee becomes eligible to receive social security and replaces it with a tier down of 25% over a 3 year period; provide that employees will be paid two (2) years of benefits from the date of injury, and if they qualify for normal old age social security, those benefits will be subject to the 25% tier down; award a one time only retraining incentive benefit (RIB) if an employee has category 1/0 and respiratory impairment evidenced by spirometric test values between 50-79% of predicted norm or has cat. 1/1 or 1/2 and a respiratory impairment evidenced by spirometric test values of 80% or greater; if an employee has category 1/0 and respiratory impairment evidenced by spirometric test values between less than 55% of predicted norm or has category 1/1 or 1/2 and a respiratory impairment evidenced by spirometric test values of 55-79% or greater. or category 2/1, 2/2, 2/3 and spirometric test values of 80% or more, there will be an irrebuttable presumption that the employee has a 25% disability rating resulting from exposure to coal dust, and the employee shall be awarded 66 2/3 of the employee's Average weekly wage (AWW) not to exceed 75% of the state average weekly wage (SAWW) multiplied by 25% disability rating, for 425 weeks, but benefits shall not be paid to an employee who continues to work in the mines; if an employee has category 2/1, 2/2 or 2/3 and respiratory impairment evidenced by spirometric test values between less than 55% of predicted norm, or has category 3/2 or 3/3 with a respiratory impairment evidenced by spirometric test values of 55-79% or greater, there will be an irrebuttable presumption that the employee has a 75% disability rating resulting from exposure to coal dust, the employee shall be awarded 66 2/3 of the employee's AWW not to exceed 75% of the SAWW multiplied by 75% disability rating, for 520 weeks, but shall not be paid to an employee who continues to work in the mines; if an employee has category 3/2 or 3/3 and respiratory impairment evidenced by spirometric test values between less than 55% of predicted norm ,or has cat. 3/2 or 3/3 with a respiratory impairment evidenced by spirometric test values of 55-79% or greater, there shall be an irrebuttable presumption that the employee is totally disabled and shall be awarded 66 2/3 of the employee's AWW not to exceed 100% of the SAWW, and not less than 20% of the AWW, for duration of the disability, but award shall not be paid to an employee who continues to work in the mines; if a miner has 15 years experience as shown by Social Security records, and has coal workers' pneumoconiosis (CWP) there shall be a rebuttable presumption that coal dust exposure was the cause; a miner age 55 or older who is entitled to a RIB under subsection 1(a) may elect to take an amount equal to 66 2/3 of AWW but less than 75% of the SAWW multiplied by 25% for 425 weeks, but not if he continues to work in the mines; claims with date of last exposure between 12/12/96 and the effective date of this Act shall be reconsidered under administrative regulations promulgated by the commissioner, and may be reopened and benefits awarded based on amendments to this Act, previous benefits will be credited against the reconsidered award or settlement, additional awards will be paid from the CWP Fund, claims that were dismissed because the miner had not developed CWP or claims dismissed for reasons other than failure to meet medical criteria shall not be reopened or reconsidered; claims of miners last exposed between 12/12/96 and the effective date of this Act will be governed by the provisions of this Act, as amended, with additional benefits awarded being paid from the CWP Fund; claims for any miner last exposed after 12/12/96 and 12/11/97 may be filed within 4 years of the date of last exposure or after the employee experiences first symptoms of an occupational disease, but the right to compensation shall be barred if the claim is not filed within 5 years from the date of last exposure to the occupational hazard, any added benefits awarded will be paid by the CWP Fund; require the Department of Insurance to evaluate alternate methods of establishing worker's compensation rates for employers in the construction industry, and within 180 days of the effective date of this Act, promulgate administrative regulations prescribing that carriers develop a method of computing worker's compensation premiums that does not discriminate against or penalize employers in the construction industry because they pay higher wages than other employers to workers in the same job classification.
HB 992 - AMENDMENTS
HCS/LM - Retain original provisions with the following changes: the medical impairment grid for permanent partial disability was revised; death benefits were increased from $25,000 to $50,000 and indexed annually; and the effect of the reopening period, which was expanded from 4 to 6 years, was clarified for concluded claims.
HFA (1, S. Cave) - Delete Section 1, definitions, including amended definition of "injury" and definition of "miner"; Section 2, utilization review requirements; Section 3, reopening provisions with amendment to change statute of limitations from 6 to 4 years,; Section 5, settlement agreements; Section 6, unfair claims settlement practices provisions including new language requiring carriers to pay penalties to injured employees, imposes added penalties and cost for carriers violating unfair claims settlement practices in both KRS Chapter 342 and 304, and imposes a $5,000 fine, to be paid to injured employees, if a carrier fails to deliver medical services in a timely manner; Section 9, attorney fee provisions; Sections 10. and 11, vocational rehabilitation requirements including provisions for enhanced payments during rehabilitation and relocation assistance if an injured employee securing employment within 50 miles of his or her usual residence; Section 13, provisions for determining and paying retraining incentive benefits and income benefits for coal workers' pneumoconiosis; and Section 14, requirement for the Insurance Commissioner to evaluate alternate methods of establishing rates for construction industry employers; retain and renumber four sections providing for the: Section 1, retention of the Workers' Compensation Board, Section 2, assignment of claims, Section 3, occupational disease claims resolution process, and Section 4, determination of temporary total disability, permanent partial disability, and permanent total disability.
HFA (2, S. Cave) - Same as FA 1 to House Bill 992.
HFA (3, S. Nunn) - Revised medical impairment grid for determining permanent partial disability.
HFA (4, S. Nunn) - Deletes Section 15 that would require the Department of Insurance to evaluate alternate methods of establishing workers' compensation rates for employers in the construction industry.
HFA (5, S. Cave) - Delete sections 1, 2, 3, 5, 6, 8, 10, 11, 13, 14, and 15 from the bill, renumbers remaining sections and makes technical changes.
HFA (6, S. Cave) - Deletes Sections 1, 2, 3, 5, 6, 8, 10, 11, 13, 14, and 15 from the bill, renumbers remaining sections and makes technical changes.
HFA (7, J. Turner) - Amend to increase interest penalty from 15% to 20% and fines from $5,000 to $10,000 for workers' compensation violations.
HFA (8, J. Turner) - Deletes Section 15 that would require the Department of Insurance to evaluate alternate methods of establishing workers' compensation rates for employers in the construction industry.
HFA (9, D. Butler) - Amend to provide remedies under KRS Chapter 446 for unfair claims practices.
HFA (10, J. Turner) - Provides for the reduction of income benefits by 10% on the date the employee is eligible or normal old-age social security retirement benefits; and be each year thereafter until they are reduced by 50%; requires the initial reduction to be made from the awarded amount of benefits, and annual reduction are to be made from the remaining amount.
HFA (11, J. Turner) - Amend to delete arbitrators, and require administrative law judges to conduct benefit settlement conferences in lieu of benefit review conferences by arbitrators.
HFA (12, C. Ratliff) - Amend KRS 342.315 to include the Pikeville School of Osteopathic Medicine for independent medical evaluations.
HFA (13, C. Ratliff) - Amend KRS 342.165 to give an employee who suffers an accident with traumatic injury, his dependents or personal representatives, a private cause of action against an employer who intentionally removes a safety device from machinery, and provide that any award or benefit gained as a result of bringing suit against the employer will be in addition to benefits received under KRS Chapter 342 (Workers' Compensation Act); amend KRS 342.610 to require, if injury or death occurs, as a result of an employer intentionally failing to comply with specific statutes and administrative regulations regarding the installation or maintenance of safety appliances or methods, or the employer intentionally removes a safety device from a machine, that the injured employee or his dependents will have a private cause of action against the employer, and that any award or benefit gained as a result of bringing suit against the employer will be in addition to benefits received under the Workers' Compensation Act.
HFA (14, C. Ratliff) - Delete the presumptive weight provision pertaining to the independent medical evaluations conducted by the Universities of Kentucky and Louisville.
HFA (15, C. Ratliff) - Prohibits denying workers' compensation claims solely on the basis of a chest x-ray.
HFA (16, C. Ratliff) - Amend KRS 342.315 to give presumptive weight to x-ray interpretations that have been conducted by certified "B" readers or certified radiologists.
HFA (17, J. Turner) - Same as FA 33 for House Bill 992.
HFA (18, J. Turner) - Amend to replace the permanent partial disability provision, based on the medical impairment grid, with a requirement that provides income benefits up to 2 times the functional impairment rate unless the employee establishes a greater percentage of disability; and includes age and education factors.
HFA (19, J. Turner) - Same as FA 19 for House Bill 992.
HFA (20, J. Gray) - Provides for reopening claims which had been resolved on or after Dec. 12, 1996, but shall not be construed to extend the reopening period for claims on which the reopening period had expired on or before the effective date of this Act.
HFA (21, J. Gray) - Increases the death benefit from $25,000 to $50,000; requires the Commissioner of the Department of Workers' Claims to adjust the amount of the death benefit, each year, based on the state average weekly wage computed under KRS 342.740.
HFA (22, J. Turner) - Amend to reduce the impairment rate necessary for benefits for occupational hearing loss from 8% to 5%.
HFA (23, J. Turner) - Amends KRS 342.316 to permit instead of require administrative law judges to make referrals for independent medical evaluations; amend KRS 342.270 to permit instead of require the Commissioner of the Department of Workers' Claims to make referrals to Universities of Kentucky and Louisville only when a complicated or unusual medical question arises; delete language requiring that university medical evaluations be given presumptive weight; amend KRS 342.7305 to delete requirement for the Commissioner to promulgate administrative regulations for referring hearing loss claims for medical evaluation, medical reimbursement, and prompt authorization of hearing enhancement devices.
HFA (24, C. Ratliff) - Amend to delete the presumptive weight provision for independent university medical evaluations.
HFA (25, J. Turner) - Provides for the reconsideration of coal worker pneumoconiosis claims, with dates of last exposure, which were filed between Dec. 12, 1996 and the effective date of this Act; Commissioner of the Department of Workers' Claims shall promulgate administrative regulations for the reconsiderations; any benefits awarded shall be based on the standard set forth by the amendments to this Act; additional benefits shall be paid from the Ky. Coal Workers' Pneumoconiosis Fund.
HFA (26, J. Turner) - Amend to increase interest penalty from 15% to 20% and fines from $5,000 to $10,000 for workers' compensation violations.
HFA (27, J. Turner) - Amend to replace the permanent partial disability provision, based on the medical impairment grid, with a requirement that provides income benefits up to 2 times the functional impairment rate unless the employee establishes a greater percentage of disability; and includes age and education factors.
HFA (28, T. Turner) - Deletes Section 14 that would require the Department of Insurance to evaluate alternate methods of establishing workers' compensation rates for employer in the construction industry.
HFA (29, J. Turner) - Provides for the reduction of income benefits by 10% on the date the employee is eligible or normal old-age social security retirement benefits; and be each year thereafter until they are reduced by 50%; requires the initial reduction to be made from the awarded amount of benefits, and annual reduction are to be made from the remaining amount.
HFA (30, J. Turner) - Same as FA 30 for House Bill 992/HCS.
HFA (31, J. Turner) - Amend to reduce the impairment rate necessary for benefits for occupational hearing loss from 8% to 5%.
HFA (32, J. Turner) - Amend to delete the training requirement for retraining incentive benefits.
HFA (33, T. Turner) - Changes statute of limitation on reopening a claim from 6 to 8 years.
HFA (34, C. Ratliff) - Same as FA 13 to House Bill 992/HCS.
HFA (35, C. Ratliff) - Same as FA 12 for House Bill 992/HCS.
HFA (36, C. Ratliff) - Same as FA 15 to House Bill 992/HCS.
HFA (37, C. Ratliff) - Same as FA 16 to House Bill 992/HCS.
HFA (38, J. Turner) - Amend to delete the training requirement for retraining incentive benefits.
HFA (39, J. Turner) - Amend to delete arbitrators and require administrative law judges to conduct benefit settlement conferences in lieu of benefit review conferences by arbitrators.
HFA (40, S. Nunn) - Deletes Section 14 that would require the Department of Insurance to evaluate alternate methods of establishing workers' compensation rates for employers in the construction industry.
HFA (41, M. Treesh) - Amend definition of total disability to include age qualifications and training of the employee.
HFA (42, M. Treesh) - Amend definition of total disability to include age qualifications and training of the employee.
HFA (43, J. Turner) - Provides that fines or penalties imposed under either KRS Chapters 342 or 304 for violations of unfair claims settlement practices shall not be the basis or justification for increases in premium or rates charged for workers' compensation insurance.
HFA (44, C. Ratliff) - Amend to make technical reference to the School of Osteopathic Medicine at Pikeville College.
HFA (45, C. Ratliff) - Amend to make technical reference to the School of Osteopathic Medicine at Pikeville College.
SCS/LM - Amend to delete all provisions of the bill after the enacting clause and insert provision that delete arbitrators and the arbitrator system; require administrative law judges to conduct benefit review conferences; restore the workers' compensation board; eliminate the 2 year waiting period for reopening while retaining the 4 year limitation on reopening; authorize lump-sums on weekly benefit amounts up to $100; cap attorney fees at $12,000 and remove penalty for unsuccessful appeals; revise the permanent partial disability structure to increase impairment grid factors and retain factors for age and education.
SFA (1, G. Johnson) - Amends KRS 342.165 to give an employee who suffers an accident with traumatic injury, his dependents or personal representatives, a private cause of action against an employer who intentionally removes a safety device from machinery, and provides that any award or benefit gained as a result of bringing suit against the employer will be in addition to benefits received under the Workers' Compensation Act; amend KRS 342.610 to require, if an accident with traumatic injury or death occurs, as a result of an employer intentionally failing to comply with safety standards or administrative regulation or intentionally removing a safety device from machine, that the injured worker or his dependents will have a private cause of action against the employer, and any award or benefit gained as a result of bringing suit against the employer will be in addition to benefits received under the Workers' Compensation Act.
SFA (2, D. Adams) - Create a new section of KRS Chapter 342 to establish requirements for reporting on the workers' compensation program, applicable to the commissioners of the Dept. of Workers' Claims and the Dept. of Insurance.
SFA (3, D. Adams) - Amend KRS 342.232 to requires that request for other information by either the chair of the House Labor and Industry Committee the chair of the Interim Joint Committee on Labor and Industry shall be made to the commissioner of the Dept. of Workers' Claim, and the commissioner shall have up to 60 calendar days to respond to the request in writing.
SFA (4, D. Adams) - Amend KRS 342.315 to require the commissioner of the Dept. of Workers Claims to contract with a medical provider to evaluate injured workers in eastern and western Kentucky in addition to the Universities of Kentucky and Louisville, when a medical question arises; require the commissioner to refer an injured worker to an evaluation facility nearest the worker's place of residence as stated on the application for benefits.
SFA (5, D. Adams) - Restores grid factors used in statute.
SFA (6, D. Adams) - Delete new language that would add multipliers for limited education and advancing age to the formula used to calculate temporary, total, or permanent partial income benefits for workers' compensation.
CCR - Conference committee could not agree and requested Free Conference Committee be appointed.
FCCR (Majority Report) - Adopt the Senate Committee Substitute with changes that increase the number of administrative law judges from 16 to 19; increase the lump sum death benefit from $25,000 to $50,000, indexed annually; revise the adjudication process to authorize the commissioner to assign administrative law judges to conduct benefit review conferences; decrease from 90 to 60 days for a final decision of an administrative law judge; modify the permanent partial disability provision to clarify that multipliers apply in the alternative; and increase the penalty payments from 15% to 30% where safety standards are intentionally violated.
Mar 1-introduced in House
Mar 2-to Labor and Industry (H)
Mar 3-posting waived; posted in committee
Mar 8-reported favorably, 1st reading, to Calendar with Committee Substitute
Mar 9-2nd reading, to Rules; posted for passage in the Regular Orders of the Day for Friday, March 10, 2000; floor amendments (2) (3) (4) (5) (7) (8) (9) (10) (11) (12) (13) (14) (15) (16) (17) (18) (19) (22) and (23) to Committee Substitute; floor amendments (1) (6) (20) (21) (24) (25) (26) (27) (28) (29) (30) (31) (32) (33) (34) (35) (36) and (37) filed to bill
Mar 10-floor amendments (38) (42) and (45) filed to Committee Substitute, floor amendments (39) (40) (41) (43) and (44) filed to bill
Mar 13-3rd reading; floor amendments (12) to Committee Substitute and (35) to the bill withdrawn ; floor amendments (6) (24) (25) (26) (27) (28) (29) (30) (31) (34) (39) and (44) defeated ; passed 71-27 with floor amendments (20) and (21)
Mar 14-received in Senate
Mar 16-to Economic Development, Tourism & Labor (S)
Mar 20-reported without opinion; 1st reading, to Calendar
Mar 21-2nd reading, to Rules; recommitted to Economic Development, Tourism & Labor (S); floor amendment (1) filed
Mar 23-floor amendments (2) (3) (4) (5) and (6) filed
Mar 24-reported favorably, to Rules with Committee Substitute ; posted for passage in the Regular Orders of the Day for Friday, March 24, 2000; 3rd reading, passed 25-11 with Committee Substitute
Mar 27-received in House; posted for passage for concurrence in Senate Committee Substitute
Mar 28-House refused to concur in Senate Committee Substitute ; received in Senate; posted for passage for receding from Senate Committee Substitute Tuesday, March 28, 2000; Senate refused to recede from Committee Substitute ; Conference Committee appointed in House and Senate; Conference Committee report filed in House and Senate; Conference Committee report adopted in House and Senate; Free Conference Committee appointed in Senate
Mar 29-Free Conference Committee appointed in House; Free Conference Committee report filed in House and Senate; Free Conference Committee report adopted in Senate; passed 32-5
Apr 11-received in House; Free Conference Committee report adopted in House; passed 97-2; enrolled, signed by each presiding officer, delivered to Governor
Apr 21-signed by Governor (Acts ch. 514)
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