LABOR CABINET DEPARTMENT OF WORKERS’ CLAIMSrolandlegal.com/amendment 803 kar 25.pdf · 1 1 LABOR...

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LABOR CABINET 1

DEPARTMENT OF WORKERS’ CLAIMS 2

(Amendment) 3

803 KAR 25:010. Procedure for adjustments of claims. 4

RELATES TO: KRS 342.0011, 342.125, 342.260, 342.265, 342.270, 342.300, 5

342.310, 342.315, 342.710, 342.715, 342.732, 342.760 6

STATUTORY AUTHORITY: KRS 342.033, 342.260(1), 342.270(3), 342.285(1) 7

NECESSITY, FUNCTION, AND CONFORMITY: KRS 342.260(1) requires the com-8

missioner [executive director] to promulgate administrative regulations necessary to imple-9

ment the provisions of KRS Chapter 342. KRS 342.270(3) requires the commissioner [ex-10

ecutive director] or to promulgate an administrative regulation establishing procedures for 11

the resolution of claims. KRS 342.033 requires the commissioner [executive director] to 12

prescribe the format and content of written medical reports. KRS 342.285(1) requires the 13

commissioner [executive director] to promulgate an administrative regulation governing ap-14

peals to the Workers' Compensation Board. This administrative regulation establishes the 15

procedure for the resolution of claims before an administrative law judge or Workers' Com-16

pensation Board. 17

Section 1. Definitions. (1) "Administrative law judge" means an individual appointed 18

pursuant to KRS 342.230(3). 19

(2) "Board" is defined by KRS 342.0011(10). 20

(3) "Civil rule" means the Kentucky Rules of Civil Procedure. 21

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(4) "Date of filing" means the date that: 1

(a) A pleading, motion, or other document is received by the Commissioner 2

[Executive Director] at the Department [Office] of Workers' Claims in Frankfort, Ken-3

tucky, except: 4

1. Awards, [Final] orders and opinions of administrative law judges, which 5

shall be deemed "filed" three (3) days after the date set forth on the final order or 6

opinion; and 7

2. Documents delivered to the offices of the Department [Office] of Workers' 8

Claims after the office is closed at 4:30 p.m. or on the weekend, which shall be 9

deemed filed the following business day; or 10

(b) A document is transmitted by United States registered (not certified) or 11

express mail, or by other recognized mail carriers, and the date the transmitting 12

agency receives the document from the sender as noted by the transmitting agency 13

on the outside of the container used for transmitting, within the time allowed for fil-14

ing. 15

(5) "Employer" means individuals, partnerships, voluntary associations and 16

corporations. 17

(6) "Employer who has not secured payment of compensation" means any 18

employer who employs an employee as defined by KRS 342.640 but has not com-19

plied with KRS 342.340. 20

(7) "Commissioner [Executive director]" is defined by KRS 342.0011[1](9). 21

(8) "Latest available edition" means that edition of the "Guides to the Evalua-22

tion of Permanent Impairment" as defined at KRS 342.0011(37) and approved and 23

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adopted by the General Assembly which the commissioner [executive director] has 1

certified as being generally available to the department [office], attorneys, and medi-2

cal practitioners, by posting prominently at the department’s [office's] hearing sites 3

and on the department’s web site the date upon which a particular edition of the 4

"Guides to the Evaluation of Permanent Impairment" is applicable for purposes of 5

KRS Chapter 342. 6

(9) "Special defenses" means defenses that shall be raised by "special an-7

swer" filed in accordance with Section 5(2)(d) of this administrative regulation. 8

Section 2. Parties. (1) The party making the original application for resolution 9

of claim pursuant to KRS 342.270 or 342.316 shall be designated as "plaintiff". Ad-10

verse parties shall be designated as "defendants". 11

(2) All persons shall be joined as plaintiffs in whom any right to any relief pur-12

suant to KRS Chapter 342, arising out of the same transaction and occurrence, is 13

alleged to exist. If a person refuses to join as a plaintiff, that person shall be joined 14

as a defendant, and the fact of refusal to join as a plaintiff shall be pleaded. 15

(3)(a) All persons shall be joined as defendants against whom the ultimate 16

right to relief pursuant to KRS Chapter 342 may exist, whether jointly, severally, or in 17

the alternative. An administrative law judge shall order, upon a proper showing, that 18

a party be joined or dismissed. 19

(b) The Special Fund/Workers’ Compensation Funds may be joined as a de-20

fendant in accordance with the appropriate statutory provisions [for claims in which 21

the injury date or date of last exposure occurred before December 12, 1996]. 22

(c) Joinder shall be sought by motion as soon as practicable after legal 23

4

grounds for joinder are known. Notice of joinder and a copy of the claim file shall be 1

served in the manner ordered by the administrative law judge. 2

Section 3. Pleadings. (1) An application for resolution of claim and all other 3

pleadings shall be typewritten, signed originally, and submitted in accordance with 4

this administrative regulation. 5

(a) For an injury claim, an applicant shall submit a completed Form 101, Ap-6

plication for Resolution of Injury Claim. If the accident caused a fatal injury, the ap-7

plicant shall also submit an Appendix F with the Application. If the applicant alleges 8

a safety violation pursuant to KRS 342.165, the applicant shall submit an Appendix 9

SVC with the Application. 10

(b) For an occupational disease claim other than coal workers' pneumoconio-11

sis, an applicant shall submit a completed Form 102-0D, Application for Resolution 12

of Occupational Disease Claim. 13

(c) For a hearing loss claim, an applicant shall submit a completed Form 103, 14

Application for Resolution of Hearing Loss Claim. 15

(2) An application for resolution of claim shall be filed with sufficient copies for 16

service on all parties. The commissioner [executive director] shall make service by 17

first class mail. [Incomplete applications may be rejected and returned to the appli-18

cant. If the application is refiled in proper form within twenty (20) days of the date it 19

was returned, the filing shall relate back to the date the application was first received 20

by the executive director. Otherwise, the date of second receipt shall be the filing 21

date.] 22

(3) The original of a[A]ll pleadings shall be filed with [served upon] the com-23

5

missioner [executive director] and shall be served upon all other parties by mailing a 1

copy to the other parties or, if represented, to that representative, at the party's or 2

representative's last known address. The parties, by agreement, may serve all 3

pleadings upon each other by electronic means. A certificate of service indicating 4

the method and date of service and signed by the party shall appear on the face of 5

the pleading. The party or its representative shall include his/her name, full address, 6

phone number, e-mail address, and if applicable, Kentucky Bar Association number. 7

Notices of deposition, [and] notices of physical examination, requests for and re-8

sponses to requests for production of documents, and exchange of reports or rec-9

ords shall be served upon the parties and shall not be filed with the commissioner 10

[executive director]. 11

(4) After the application for resolution has been assigned to an administrative 12

law judge, subsequent pleadings shall include, within the style of the claim and im-13

mediately before the claim number, "Before Administrative Law Judge (name)". Up-14

on consolidation of claims, the most recent claim number shall be listed first. 15

(5)(a) All documents involved in an appeal to the Workers' Compensation 16

Board shall include the language "Before Workers' Compensation Board" before the 17

claim number within the style of the claim. 18

(b) Parties shall insert the language "Appeals Branch" or "Workers’ Compen-19

sation Board" on the outside of the envelope containing documents involved in an 20

appeal. 21

Section 4. Motions. (1) The party filing a motion shall tender a proposed order 22

granting the relief requested. 23

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(2) The party filing a motion may file a brief memorandum supporting the mo-1

tion and opposing parties may file brief memoranda in reply. Further memoranda 2

(for example, reply to response) shall not be filed. 3

(3) Every motion and response, the grounds of which depend upon the exist-4

ence of facts not in evidence, shall be supported by affidavits demonstrating the 5

facts. 6

(4) Every motion, the grounds of which depend upon the existence of facts 7

which the moving party believes are shown in the evidence or are admitted by the 8

pleadings, shall make reference to the place in the record where that evidence or 9

admission is found. 10

(5) A motion, other than to reopen pursuant to KRS 342.125 or for interlocuto-11

ry relief, shall be considered ten (10) days after the date of filing. A response shall 12

be considered if filed on or before the tenth day after the filing of the motion. 13

(6)(a) A motion to reopen shall be accompanied by as many of the following 14

items as may be applicable: 15

1. A current medical release Form 106 executed by the plaintiff; 16

2. An affidavit evidencing the grounds to support reopening; 17

3. A current medical report showing a change in disability established by ob-18

jective medical findings; 19

4. A copy of the opinion and award, settlement, voluntary agreed order or 20

agreed resolution sought to be reopened; 21

5. An affidavit certifying that a previous motion to reopen has not been made 22

by the moving party, or if one (1) has previously been made, the date on which the 23

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previous motion was filed; 1

6. A designation of evidence from the original record specifically identifying 2

the relevant items of proof which are to be considered as part of the record during 3

reopening; or 4

7. A certification of service that the motion was served on all parties as well 5

as counsel for the parties. 6

(b)1. A designation of evidence made by a party shall list only those items of 7

evidence from the original record that are relevant to the matters raised on reopen-8

ing. 9

2. The burden of completeness of the record shall rest with the parties to in-10

clude so much of the original record, up to and including the award or order on reo-11

pening, as is necessary to permit the administrative law judge to compare the rele-12

vant evidence that existed in the original record with all subsequent evidence sub-13

mitted by the parties. 14

3. Except for good cause shown at the time of the filing of the designation of 15

evidence, a party shall not designate the entire original record from the claim for 16

which reopening is being sought. 17

(c)1. A motion to reopen shall not be considered until twenty-five (25) days 18

after the date of filing. 19

2. Any response shall be filed within twenty (20) days of filing the motion to 20

reopen. 21

3. A response may contain a designation of evidence specifically identifying 22

evidence from the original record not already listed by the moving party that is rele-23

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vant to matters raised in a response. 1

(d) Any party may use the following forms provided by the department [office] 2

for motions to reopen: 3

1. Form MTR-1, Motion to Reopen by Employee; 4

2. Form MTR-3, Motion to Reopen by Defendant; and 5

3. Form MTR-2, Motion to Reopen KRS 342.732 Benefits. 6

(7) A motion for allowance of a plaintiff's attorney fee shall: 7

(a) Be made within thirty (30) days following the finality of the award, settle-8

ment or agreed resolution upon which the fee request is based; 9

(b) Be served upon the adverse parties and the attorney's client; 10

(c) Set forth the fee requested and mathematical computations establishing 11

that the request is within the limits set forth in KRS 342.320; and 12

(d) Be accompanied by: 13

1. An affidavit of counsel detailing the extent of the services rendered and the 14

time expended; 15

2. A signed and dated Form 109 as required by KRS 342.320(5); and 16

3. A copy of the signed and dated contingency fee contract, if requesting an 17

attorney fee based upon recovery of income benefits on behalf of employee. 18

(8) A motion for allowance of defendant's attorney's fee shall be: 19

(a) Filed within thirty (30) days following the finality of the decision; and 20

(b) Accompanied by an affidavit of counsel detailing: 21

1. The extent of the services rendered and the time expended; 22

2. The hourly rate and total amount to be charged; and 23

9

3. The date upon which agreement was reached for providing the legal ser-1

vices. 2

(9) The following motions relating to vocational rehabilitation training provided 3

by the department [office] may be used by all parties: 4

(a) Form VRT, Petition for Vocational Rehabilitation Training; and 5

(b) Form WVR, Joint Motion and Agreement to Waive Vocational Rehabilita-6

tion Evaluation. 7

(10) If a plaintiff is deceased, a Motion to Substitute Party and Continue Ben-8

efits shall be filed on Form 11. 9

Section 5. Application for Resolution of an Injury Claim and Response. (1) To 10

apply for resolution of an injury claim, the applicant shall file Form 101 with the fol-11

lowing completed documents: 12

(a) Work history (Form 104), to include all past jobs performed on a full or 13

part-time basis within twenty (20) years preceding the date of injury; 14

(b) Medical history (Form 105), to include all physicians, chiropractors, osteo-15

paths, psychiatrists, psychologists, and medical facilities such as hospitals where 16

the individual has been seen or admitted in the preceding fifteen (15) years and in-17

cluding beyond that date any physicians or hospitals regarding treatment for the 18

same body part claimed to have been injured; 19

(c) Medical release (Form 106); 20

(d) One (1) medical report, which may consist of legible, hand-written notes of 21

the treating physician, and which shall include the following: 22

1. A description of the injury which is the basis of the claim; 23

10

2. A medical opinion establishing a causal relationship between the work-1

related events or the medical condition which is the subject of the claim; and 2

3. If a psychological condition is alleged, an additional medical report estab-3

lishing the presence of a mental impairment or disorder; 4

[(e) Documentation substantiating the plaintiff's preinjury and postinjury wag-5

es; and 6

(f) Documentation establishing additional periods for which temporary total 7

disability benefits are sought.] 8

(2)(a) Following the filing of an application for resolution of claim, or the sus-9

taining of a motion to reopen, the commissioner shall issue a notice of filing and 10

scheduling order for a benefit review conference, to be conducted by an administra-11

tive law judge. Within forty-five (45) days of the date of the notice of filing and 12

scheduling order for a benefit conference, defendant(s) shall file a Notice of Claim 13

Denial or Acceptance on a Form 111 - Injury and Hearing Loss and Occupational 14

Disease other than coal workers’ pneumoconiosis. However, no Form 111, Notice 15

of Claim Denial shall be required to be filed by any party in a claim reopened pursu-16

ant to KRS 342.125. [The defendant shall file a Notice of Claim Denial or Ac-17

ceptance on a Form 111 - Injury and Hearing Loss within forty-five (45) days after 18

the notice of the scheduling order or within forty-five (45) days following an order 19

sustaining a motion to reopen a claim.] 20

(b) If a Form 111 is not filed, all allegations of the application shall be deemed 21

admitted. 22

(c) The Form 111 shall set forth whether the claim is admitted, or denied in 23

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whole or denied in part [the following: 1

1. All pertinent matters which are admitted and those which are denied; 2

2. If a claim is denied in whole or in part, a detailed summary of the basis for 3

denial; 4

3. The name of each witness whose testimony may be relevant to that denial; 5

and 6

4. A description of the physical requirements of the plaintiff's job at the time of 7

the alleged injury and the name, address and telephone number of the individual re-8

sponsible for gathering this information for the employer and its insurer]. 9

(d) In addition to the Form 111, a defendant shall file a special answer to 10

raise any special defenses in accordance with this paragraph. If defendant raises 11

the special defense under KRS 342.165, failure to comply with safety laws, defend-12

ant shall also submit with the special answer Appendix SVE. 13

1. [A defendant may incorporate special defenses that have been timely 14

raised in the Form 111. 15

2.] A "special answer" shall be filed within: 16

a. Forty-five (45) days of the date of the notice of filing and [of the] scheduling 17

order for a benefit review conference; or 18

b. Forty-five (45) days of the date of the order making the defendant a party, 19

if joinder occurs after the filing of the application for the resolution of the claim. 20

c. [b.] Ten (10) days of the [after} discovery of facts supporting the defense 21

upon a showing that [if] discovery could not have been made [had] earlier in the ex-22

ercise of due diligence. 23

12

2 [3]. A special defense shall be waived if not timely raised. 1

3 [4]. A special defense shall be pled [pleaded] if the defense arises under: 2

a. KRS 342.035(3), unreasonable failure to follow medical advice; 3

b. KRS 342.165, safety violation [failure to comply with safety laws]; 4

c. KRS 342.316(7) or 342.335, false statement on employment application; 5

d. KRS 342.395, voluntary rejection of KRS Chapter 342; 6

e. KRS 342.610(3), voluntary intoxication or self-infliction of injury; 7

f. KRS 342.710(5), refusal to accept rehabilitation services; or 8

g. Running of periods of limitations or repose under KRS 342.185, 342.270, 9

342.316, or other applicable statute. 10

(e) Within forty-five (45) days of the date of the notice of filing and 11

scheduling order for a benefit review conference, parties shall file a notice of 12

disclosure. The notice of disclosure shall contain: 13

1. A list of all witnesses upon whom the party intends to rely. The list 14

shall include the name of the witness, which contested issue(s) they are expected to 15

address, and the date of any examination they are to conduct or deposition they are 16

to provide. If the witness has provided medical care or treatment, the list shall 17

include the medical condition(s) treated. 18

2. A statement setting out plaintiff’s educational background to include a 19

listing of any diplomas, certificates or degrees obtained, the nature of the diplomas, 20

certificates or degrees and when obtained. Further plaintiff shall provide wage 21

information for the date of injury and all wages earned subsequent to the injury to 22

include any wages earned as of the date of service of the notice of disclosure. If 23

13

any wages have been earned subsequent to the subject injury while employed by an 1

employer other than the employer where the injury occurred, plaintiff shall provide a 2

listing of the employer(s), addresses, and dates of subsequent employment and the 3

nature of the employment including a description of the physical requirement of such 4

subsequent employment. 5

3. A list of all known and anticipated contested issues. The list of 6

contested issues shall be completed with specificity. The subsequent addition of 7

contested issues shall only be allowed upon motion to the administrative law judge, 8

upon a showing of good cause as to why the issue could not have been discovered 9

earlier. Alleging an injury or occupational disease or listing a contested issue 10

without reasonable ground shall constitute grounds for the imposition of sanctions 11

under §26 of this administrative regulation. 12

4. If the proof cannot be completed within the time allotted in the 13

scheduling order, the party shall list the proof, its relevance and necessity to be 14

presented, and the reason the proof cannot be presented within the time allotted in 15

the scheduling order. This statement shall not be considered a motion for extension 16

of time. 17

5. Plaintiff shall provide with the notice of disclosure copies of known 18

unpaid medical bills and documentation of all out-of-pocket expenses including, but 19

not limited to, travel for medical treatment, co-pays or direct payments by plaintiff for 20

medical expenses for which plaintiff seeks payment or reimbursement. 21

6. A statement of any other issues of which the party is aware which may 22

impact the claim including, but not limited to, potential contested issues, evidence or 23

14

scheduling. 1

7. The defendant(s) shall provide with its notice of disclosure a 2

completed Form AWW-1, average weekly wage certification, and copies of any 3

medical bills and/or medical expenses disputed by defendant(s), any submitted bills 4

being considered but unpaid, and a total for all medical expenses paid as of the date 5

application for resolution of the claim or motion to reopen is filed. If the plaintiff has 6

earned wages for defendant(s) after the injury which are the subject of the litigation, 7

defendant(s) shall provide post-injury wage information records. In a reopened 8

claim, no Form AWW-1 shall be required to be filed if the pre-injury average weekly 9

wage was previously stipulated by the parties unless a party seeks and is relieved 10

from the original stipulation or an administrative law judge made a finding as to 11

average weekly wage. 12

8. Within forty-five (45) days of the date of the order joining a new party, 13

the newly joined party shall file a notice of disclosure. The notice of disclosure shall 14

contain: 15

a. A list of all witnesses upon whom the party intends to rely. The list 16

shall include the name of the witness, which contested issue(s) they are expected to 17

address, and the date of any examination they are to conduct or deposition they are 18

to provide. If the witness has provided medical care or treatment, the list shall 19

include the dates of treatment and the medical condition(s) treated. 20

b. A list of all contested issues known to the party. The list of contested 21

issues shall be completed with specificity. The subsequent addition of contested 22

issues shall only be allowed upon motion to the administrative law judge, upon a 23

15

showing of good cause as to why the issue could not have been discovered earlier. 1

Alleging an injury or occupational disease or listing a contested issue without 2

reasonable ground shall warrant imposition of sanctions under §26 of this 3

administrative regulation. 4

c. If the proof cannot be completed within the time allotted in the 5

scheduling order or order naming them as a party, the party shall list the proof, its 6

relevance and necessity to be presented, and the reason the proof cannot be 7

presented within the time allotted. 8

d. If applicable, the newly joined party shall provide with the notice of 9

disclosure a completed Form AWW-1, average weekly wage certification, and 10

copies of any medical bills and/or medical expenses disputed by defendant(s), and 11

any submitted bills being considered but unpaid, and a total for all medical expenses 12

paid. If the plaintiff has earned wages for defendant(s) after the injury which are the 13

subject of the litigation, defendant(s) shall provide post-injury wage information 14

records. In a reopened claim, no Form AWW-1 shall be required to be filed if the 15

pre-injury average weekly wage was previously stipulated by the parties unless a 16

party seeks and is relieved of the original stipulation or an administrative law judge 17

made a finding as to average weekly wage. 18

e. If applicable, the newly joined party shall also, within forty-five (45) 19

days after the date of the order joining the new party, file a Notice of Claim Denial or 20

Acceptance on a Form 111, Injury, Hearing Loss, and Occupational Disease, other 21

than coal workers’ pneumoconiosis. However, no Form 111 shall be required to be 22

filed in a claim reopened pursuant to KRS 342.125. 23

16

9. All parties shall amend this notice of disclosure within ten (10) days of 1

the identification of any additional witness, receipt of information or documents 2

which would have been disclosed at the time of the original filing had it then been 3

known or available. 4

Section 6. Application for Resolution of an Occupational Disease Claim and 5

Response. (1) To apply for resolution of an occupational disease claim, the applicant 6

shall file Form 102-0D with the following completed attachments: 7


part-time basis within twenty (20) years preceding the date of last exposure and all 9

jobs in which plaintiff alleges exposure to the hazards of the occupational disease; 10




cluding beyond that date any physicians or hospitals regarding treatment for the 14

same body part claimed to have been injured; 15


(d) One (1) medical report supporting the existence of occupational disease; 17

and 18

(e) Social Security Release Form (Form 115). 19

(2)(a) The defendant shall file a Notice of Claim Denial or Acceptance on a 20

Form 111-OD: 21

1. Within forty-five (45) days after the notice of the scheduling order; and 22

2. In accordance with Section 5(2)(b), (c), and (d) of this administrative regu-23

17

lation. 1

(b) In addition to the Form 111-OD, a defendant shall file a special answer to 2

raise any special defenses in accordance with Section 5(2)(d) of this administrative 3

regulation. 4

(c) All parties shall file notice of disclosure in accordance with Section 5(2)(e) 5

of this administrative regulation. 6

(3) For all occupational disease and hearing loss claims, the commissioner 7

[executive director] shall promptly schedule an examination pursuant to KRS 8

342.315 and 342.316. 9

Section 7. Application for Resolution of a Hearing Loss Claim and Response. 10

(1) To apply for resolution of a hearing loss claim, the applicant shall file Form 103 11

with the following completed documents: 12


part-time basis within twenty (20) years preceding the last date of noise exposure; 14




cluding beyond that date any physicians or hospitals regarding treatment for hearing 18

loss or ear complaints; 19


(d) One (1) medical report describing the hearing loss which is the basis of 21

the claim and, if a psychological condition is alleged, an additional medical report 22

establishing the presence of a mental impairment or disorder. Medical reports re-23

18

quired under this paragraph may consist of legible, hand-written notes of a treating 1

physician; and 2

(e) Social Security Release Form (Form 115). 3

(2)(a) The defendant shall file a Notice of Claim Denial or Acceptance on a 4

Form 111 - Injury and Hearing Loss: 5

1. Within forty-five (45) days after the notice of the scheduling order; and 6

2. In accordance with Section 5(2)(b), (c), and (d) of this administrative regu-7

lation. 8

(b) In addition to the Form 111 - Injury and Hearing Loss, a defendant shall 9

file a special answer to raise any special defenses in accordance with Section 10

5(2)(d) of this administrative regulation. 11

(c) All parties shall file a notice of disclosure in accordance with Section 12

5(2)(e) of this administrative regulation. 13

Section 8. Discovery, Evidence, and Exchange of Records. (1) Proof taking 14

and discovery for all parties shall begin from the date of issuance by the commis-15

sioner [executive director] of the notice of filing and the order scheduling the benefit 16

review conference [scheduling order]. 17

(2)(a) Plaintiff and defendants shall take proof for a period of sixty (60) days 18

from the date of the scheduling order; 19

(b) After the sixty (60) day period, defendants shall take proof for an addition-20

al sixty (60) [thirty (30)] days; and 21

(c) After the defendant’s sixty (60) [thirty (30)] day period, the plaintiff shall 22

take rebuttal proof for an additional fifteen (15) days. 23

19

(3) During the pendency of a claim, any party obtaining or possessing a med-1

ical or vocational report or records and relevant portions of hospital, educational, Of-2

fice of Vital Statistics, Armed Forces, Social Security, other public records and sur-3

veillance reports and/or videos, and/or recorded statements shall serve a copy of 4

the report or records upon all other parties within ten (10) days following receipt of 5

those reports or records or within ten (10) days of receipt of notice if assigned to an 6

administrative law judge. Failure to comply with this Section may constitute grounds 7

for exclusion of the reports or records as evidence and shall constitute grounds for 8

the imposition of sanctions pursuant to Section 26. 9

(4) All medical reports filed with Forms 101, 102-0D, or 103 shall be admitted 10

into evidence without further order if: 11

(a) An objection is not filed prior to or with the filing of the Form 111; and 12

(b) The medical reports comply with Section 10 of this administrative regula-13

tion. 14

Section 9. Vocational Reports. (1) A vocational report may be filed by notice 15

and shall be admitted into evidence without further order and without the necessity 16

of a deposition, if an objection is not filed. 17

(2) Vocational reports shall be signed by the individual making the report. 18

(3) Vocational reports shall include, within the body of the report or as an at-19

tachment, a statement of the qualifications of the person making the report. 20

(4) An objection to the filing of a vocational report shall: 21

(a) Be filed within ten (10) days of the filing of the notice or motion for admis-22

sion; and 23

20

(b) State the grounds for the objection with particularity. 1

(5) The administrative law judge shall rule on the objection within fifteen (15) 2

days. 3

(6) If a vocational report is admitted as direct testimony, an adverse party 4

may depose the reporting vocational witness in a timely manner as if on cross-5

examination at its own expense. Notice of time, date, and place for cross-6

examination shall be given within fifteen (15) days of the date the evidence to be 7

cross-examined is served on the cross-examining party. 8

Section 10. Medical Reports. (1) A party shall not introduce direct testimony 9

from more than two (2) physicians by medical report except upon a showing of good 10

cause and prior approval by an administrative law judge. 11

(2) Medical reports shall be submitted on Form 107-I (injury), Form 107-P 12

(psychological), Form 108-OD (occupational disease), Form 108-CWP (coal work-13

ers' pneumoconiosis), or Form 108-HL (hearing loss), as appropriate, except that an 14

administrative law judge may permit the introduction of other reports. 15

(3) Medical reports shall be signed by the physician making the report, or be 16

accompanied by an affidavit from the physician or submitting party or representative 17

verifying the authenticity of the report. 18

(4) Medical reports shall include, within the body of the report or as an at-19

tachment, a statement of qualifications of the person making the report. If the quali-20

fications of the physician who prepared the written medical report have been filed 21

with the commissioner [executive director] and the physician has been assigned a 22

medical qualifications index number, reference may be made to the physicians index 23

21

number in lieu of attaching qualifications. 1

(5) Narratives in medical reports shall be typewritten. Other portions, includ-2

ing spirometric tracings, shall be clearly legible. 3

(6)(a) Upon notice, a party may file the testimony of two (2) physicians, either 4

by deposition or medical report, which shall be admitted into evidence without further 5

order if an objection is not filed. 6

(b) Objection to the filing of a medical report shall be filed within ten (10) days 7

of the filing of the notice or the motion for admission. 8

(c) Grounds for the objection shall be stated with particularity. 9

(d) The administrative law judge shall rule on the objection within fifteen (15) 10

days of filing. 11

(7) Medical records or reports which are not submitted on a Form 107-I 12

(injury), Form 107-P (psychological), Form 108-OD (occupational disease), Form 13

108-HL (hearing loss) may be submitted by notice which identifies the records, 14

the person or medical facility which produced the records and the relevance of 15

such records to the claim. If the records or reports submitted exceed ten (10) 16

pages, the records must be paginated or Bates stamped consecutively and in-17

dexed with a table of contents generally identifying the contents of each page. 18

Failure to comply with pagination and table of contents shall result in rejection of 19

the records and the same shall not be filed as evidence. Excepted from the re-20

quirement are narrative reports of Independent Medical Examiners (IME). 21

(8) [(7)] If a medical report is admitted as direct testimony, an adverse party 22

may depose the reporting physician in a timely manner as if on cross-examination at 23

22

its own expense. Notice of the time, date, and place for cross-examination must be 1

given within fifteen (15) days of the date the evidence to be cross-examined is 2

served on the cross-examining party. 3

Section 11. Medical Evaluations Pursuant to KRS 342.315. (1) All persons 4

claiming benefits for hearing loss or occupational disease other than coal workers' 5

pneumoconiosis shall be referred by the commissioner for a medical evaluation in 6

accordance with contracts entered into between the commissioner [executive direc-7

tor] and the University of Kentucky and University of Louisville medical schools. 8

(2) Upon all other claims except coal workers' pneumoconiosis claims, the 9

commissioner [executive director] or an administrative law judge may direct ap-10

pointment by the commissioner [executive director] of a university medical evaluator. 11

(3) Upon referral for medical evaluation under this section, a party may tender 12

additional relevant medical information to the university medical school to whom the 13

evaluation is assigned. This additional information shall not be filed of record. The 14

additional medical information shall be: 15

(a) Submitted to the university within fourteen (14) days following an order for 16

medical evaluation pursuant to KRS 342.315; 17

(b) Submitted by way of medical reports, notes, or depositions; 18

(c) Clearly legible; 19

(d) Indexed; 20

(e) Furnished in chronological order; 21

(f) Timely furnished to all other parties within ten (10) days following receipt of 22

the medical information; and 23

23

(g) Accompanied by a summary that is filed of record and served upon all 1

parties. The summary shall: 2

1. Identify the medical provider; 3

2. Include the date of medical services; and 4

3. Include the nature of medical services provided. 5

(4) Upon the scheduling of an evaluation, the commissioner [executive direc-6

tor] shall provide notice to all parties and the employer shall forward to the plaintiff 7

necessary travel expenses as required by KRS 342.315(4). Upon completion of the 8

evaluation, the commissioner [executive director] shall provide copies of the report 9

to all parties and shall file the original report in the claim record to be considered as 10

evidence. 11

(5) The administrative law judge shall allow timely cross-examination of a 12

medical evaluator appointed by the commissioner [executive director] at the ex-13

pense of the moving party. 14

(6) [Unjustified] F[f]ailure by the plaintiff to attend the scheduled medical 15

evaluation may be grounds for dismissal, payment of a no-show fee, sanctions, or 16

all of the above. 17

(7) Failure by the employer or its insurance carrier to pay travel expenses 18

within seven (7) days of notification of a scheduled medical evaluation or to pay the 19

cost of the examination within thirty (30) days of the receipt of a statement for the 20

evaluation may be grounds for imposition of sanctions. 21

Section 12. Interlocutory Relief. (1) [During a claim,] A[a] party may seek in-22

terlocutory relief by using Form 101IR, or by motion requesting [through]: 23

24

(a) Interim payment of income benefits for total disability pursuant to KRS 1

342.730(1)(a); 2

(b) Medical benefits pursuant to KRS 342.020; or 3

(c) Rehabilitation services pursuant to KRS 342.710. 4

(2) Upon receipt of a party’s request for interlocutory relief in the application 5

or by motion, the commissioner or administrative law judge (if the claim has already 6

been assigned to an administrative law judge) shall within ten (10) days issue an 7

order: 8

(a) requiring a response to the request for interlocutory relief be served 9

within twenty (20) days from the date of the order, and 10

(b) setting a hearing before an administrative law judge on the request for 11

interlocutory relief within thirty-five (35) days of the order. 12

(3) A hearing before an administrative law judge may be held to review the 13

party’s entitlement to interlocutory relief. The hearing may be held electronically if 14

the parties agree or a party demonstrates good cause as to why the party cannot 15

appear at the hearing in person. The hearing may be waived by agreement. 16

(4) Upon completion of the hearing, an administrative law judge shall 17

issue a decision within fifteen (15) days. If the hearing is waived, an administrative 18

law judge shall issue a decision within fifteen (15) days after the date of agreed 19

waiver is signed by the administrative law judge. 20

(5)(a) Entitlement to interlocutory relief shall be established by means of 21

affidavit, deposition, hearing testimony, or other means of record demonstrating the 22

requesting party: 23

25

1. is eligible under KRS Chapter 342; 1

2. will suffer irreparable injury, loss or damage pending a final decision on 2

the application; and 3

3. is likely to succeed on the merits based upon the evidence introduced 4

by the parties. 5

(b) Rehabilitation services may be ordered while the claim is pending 6

upon a showing that immediate provision of services will substantially increase the 7

probability that the plaintiff will return to work. 8

(6) If interlocutory relief is awarded in the form of income benefits, the 9

claim shall be placed into abeyance unless a party shows irreparable harm will 10

result. Plaintiff shall file reports every ninety (90) days, or sooner if circumstances 11

warrant or upon order by the administrative law judge, updating his current status. 12

Upon motion and a showing of cause, or upon the administrative law judge’s own 13

motion, interlocutory relief shall be terminated and the claim removed from 14

abeyance. Failure to file a timely status report shall constitute cause to terminate 15

interlocutory relief. 16

(7) Benefits awarded pursuant to an interlocutory order shall not be 17

terminated except upon entry of an order issued by an administrative law judge. 18

Failure to pay benefits under an interlocutory order or termination of benefits 19

ordered pursuant to an interlocutory order, shall constitute grounds for a violation of 20

the Unfair Claims Settlement Practices Act. 21

(8) If a claimant is successful in his/her request for interlocutory relief and, 22

if payment of benefits pursuant to the interlocutory relief order results in an 23

26

overpayment of benefits, the party making the overpayment shall be entitled to a 1

dollar for dollar credit for such overpayment against past due or future awarded 2

income benefits. 3

(9) If interlocutory relief is requested, no assignment to an administrative 4

law judge shall be made on other issues and no scheduling order issued until a rul-5

ing has been made on the interlocutory relief request, unless the requesting party 6

shows that delay will result in irreparable harm. [Upon motion of any party, an infor-7

mal conference: 8

(a) Shall be held to review the plaintiff's entitlement to interlocutory relief; and 9

(b) May be held telephonically. 10

(3) Any response to a request for interlocutory relief shall be served within 11

twenty (20) days from the date of the request and thereafter, the request shall be 12

ripe for a decision. 13

(4)(a) Entitlement to interlocutory relief shall be shown by means of affidavit, 14

deposition, or other evidence of record demonstrating the requesting party: 15

1. Is eligible under KRS Chapter 342; and 16

2. Will suffer irreparable injury, loss or damage pending a final decision on the 17

application. 18

(b) Rehabilitation services may be ordered while the claim is pending upon 19

showing that immediate provision of services will substantially increase the probabil-20

ity that the plaintiff will return to work. 21

(5) If interlocutory relief is awarded in the form of income benefits, the appli-22

cation shall be placed in abeyance unless a party shows irreparable harm will result. 23

27

The administrative law judge may require periodic reports as to the physical condi-1

tion of the plaintiff. Upon motion and a showing of cause, or upon the administrative 2

law judge's own motion, interlocutory relief shall be terminated and the claim re-3

moved from abeyance.] 4

(10) [(6)] An attorney's fee in the amounts authorized by KRS 342.320 that 5

does not exceed twenty (20) percent of the weekly income benefits awarded pursu-6

ant to a request for interlocutory relief may be granted. The approved fee shall be 7

deducted in equal amounts from the weekly income benefits awarded and shall be 8

paid directly to the attorney. 9

(11) [(7)] A party seeking interlocutory relief may use the following forms: 10

(a) Motion for Interlocutory Relief, Form MIR-1; 11

(b) Affidavit for Payment of Medical Expenses, Form MIR-2; 12

(c) Affidavit for Payment of Temporary Total Disability, Form MIR-3; and 13

(d) Affidavit Regarding Rehabilitation Services, Form MIR-4. 14

Section 13. Benefit Review Conferences. (1) The purpose of the benefit re-15

view conference shall be to expedite the processing of the claim and to avoid if pos-16

sible the need for a hearing. 17

(2) The benefit review conference shall be an informal proceeding. 18

(3) The date, time, and place for the benefit review conference shall be stated 19

on the scheduling order issued by the commissioner [executive director]. 20

(4) The plaintiff and his or her representative, the defendant or its representa-21

tive, and the representatives of all other parties shall attend the benefit review con-22

ference. 23

28

(5) If the defendant is insured or a qualified self-insured, a representative of 1

the carrier with settlement authority shall be present or available by telephone during 2

the benefit review conference. 3

(6) The administrative law judge may upon motion waive the plaintiff’s attend-4

ance at the benefit review conference for good cause shown. 5

(7) A transcript of the benefit review conference shall not be made. 6

(8) Representatives of all parties shall have authority to resolve disputed is-7

sues and settle the claim at the benefit review conference. 8

(9)(a) [The defendant shall provide a completed Form AWW-1, Average 9

Weekly Wage Certification.] 10

[(b)] The plaintiff shall bring copies of known unpaid medical bills and docu-11

mentation of out-of-pocket expenses including travel for medical treatments. Failure 12

to do so may constitute a waiver to claim payment for those bills or expenses absent 13

a showing of good cause as to why the bills or out-of-pocket expenses could not be 14

produced at or before the benefit review conference. 15

(b) [(c)] Each defendant shall bring copies of [disputed] medical bills present-16

ed to them, their insurer or their representative known to be unpaid by them and any 17

other disputed medical expenses including travel expenses. Failure to do so may 18

constitute a waiver of their right to challenge those bills or expenses. 19

(10) At [Ten (10) days before] the benefit review conference[, the parties 20

shall]: 21

(a) The parties shall exchange final stipulations and lists of known witnesses 22

and exhibits that: 23

29

1. [(a)] Name each proposed witness; 1

[(b) Summarize the anticipated testimony of each witness;] 2

2. [(c)] For medical witnesses, include [in the summary]: 3

[1. The diagnosis reached; 4

2. Clinical findings and results of diagnostic studies upon which the diagnosis 5

is based;] 6

a [3]. The functional impairment rating, if any, assessed by the witness; and 7

b [4]. A description of any work-related restrictions imposed; and 8

3. [(d)] Identify any exhibits. 9

(b) File a certification that settlement offers have been conveyed to opposing 10

party(ies) or counsel, and if none made, the reason. 11

(c) Failure to file a witness and exhibit list or to include a witness or exhibit 12

may constitute grounds for the administrative law judge to refuse to consider the 13

witness or exhibit in evidence. 14

(11) At the benefit review conference, the parties shall: 15

(a) Attempt to resolve controversies and disputed issues; 16

(b) Narrow and define disputed issues; and 17

(c) Facilitate a prompt settlement. 18

(12) A party seeking postponement of a benefit review conference shall file a 19

motion at least fifteen (15) days prior to the date of the conference and shall demon-20

strate good cause for the postponement. 21

(13) If at the conclusion of the benefit review conference the parties have not 22

reached agreement on all the issues, the administrative law judge shall: 23

30

(a) Prepare a final BRC memorandum and order including [summary] stipula-1

tions and identification of all contested [and uncontested] issues which shall be 2

signed by the parties or if represented their counsel [representatives of the parties] 3

and [by] the administrative law judge; and 4

(b) Schedule a final hearing. 5

(14) Only contested issues shall be the subject of further proceedings. 6

(15) Upon motion with good cause shown, the administrative law judge may 7

order that additional discovery or proof be taken between the benefit review confer-8

ence and the date of the hearing and may limit the number of witnesses to be pre-9

sented at the hearing. 10

(16) The defendant(s) or its representative(s) shall bring to the benefit review 11

conference a completed settlement agreement excepting the terms of settlement on 12

the appropriate settlement form. If an addendum or addenda are anticipated to be 13

required as part of any settlement, defendant(s) or its representative(s) shall bring a 14

pre-drafted addendum or addenda that can be used for completion of settlement. 15

Section 14. Evidence - Rules Applicable. (1) The Rules of Evidence pre-16

scribed by the Kentucky Supreme Court shall apply in all proceedings before an 17

administrative law judge except as varied by specific statute and this administrative 18

regulation. 19

(2) Any party may file as evidence before the administrative law judge perti-20

nent material and relevant portions of hospital, educational, Office of Vital Statistics, 21

Armed Forces, Social Security, and other public records. An opinion of a physician 22

which is expressed in these records shall not be considered by an administrative law 23

31

judge in violation of the limitation on the number of physician's opinions established 1

in KRS 342.033. If the records or reports submitted exceed ten (10) pages, the rec-2

ords or reports must be paginated or Bates stamped consecutively and indexed with 3

a table of contents generally identifying the contents of each page. 4

Section 15. Extensions of Proof Time. (1) An extension of time for producing 5

evidence may be granted upon showing of circumstances that prevent timely intro-6

duction, reasonable effort having been made by the party to obtain the evidence in a 7

timely manner, and the significance of the evidence to the issues in the claim. 8

(2) A motion for extension of time shall be filed no less [later] than fifteen (15) 9

[five (5)] days unless good cause is shown prior to the expiration of proof time [be-10

fore the deadline sought] to be extended, except for extensions of rebuttal time 11

which shall be filed no less than five (5) days prior to the expiration of proof time. 12

(3) The motion or [supporting] affidavit[s] shall set forth: 13

(a) The efforts to produce the evidence in a timely manner; 14

(b) Facts which prevented timely production; and 15

(c) With specificity and detail t[T]he date of availability of the evidence, the 16

probability of its production, and the materiality of the evidence. 17

(d) Failure to strictly comply with (a)(c), above, shall result in the motion for 18

extension of time being overruled. 19

(4) [In the absence of compelling circumstances, only one (1) extension of 20

thirty (30) days shall be granted to each side for completion of discovery or proof by 21

deposition]. 22

[(5)] The granting of an extension of time for completion of discovery or proof 23

32

shall: 1

(a) Enlarge the time to all: 2

1. Plaintiffs if the extension is granted to a plaintiff; and 3

2. Defendants if an extension is granted to a defendant; and 4

3. [(b)] Extend the time of the adverse party automatically except if the exten-5

sion is for rebuttal proof. 6

(b) Be limited to the introduction of the evidence cited as the basis for the re-7

quested extension of time. 8

Section 16. Stipulation of Facts. (1) Refusal to stipulate facts which are not 9

genuinely in issue shall warrant imposition of sanctions as established in Section 26 10

[24] of this administrative regulation. An assertion that a party has not had sufficient 11

opportunity to ascertain relevant facts shall not be considered "good cause" in the 12

absence of due diligence. 13

(2) Upon cause shown, a party may be relieved of a stipulation if the motion 14

for relief is filed at least ten (10) days prior to the date of the hearing, or as soon as 15

practicable after discovery that the stipulation was erroneous. 16

(3) Upon granting relief from a stipulation, the administrative law judge may 17

grant a continuance of the hearing and additional proof time. 18

Section 17. Discovery and Depositions. (1) Discovery and the taking of depo-19

sitions shall be in accordance with the provisions of Civil Rules 26 to 37, inclusive, 20

except for Civil Rules 27, 33, and 36 which shall not apply to practice before the 21

administrative law judges or the board. 22

(2) Depositions may be taken by telephone if the reporter administering the 23

33

oath to the witness and reporting the deposition is physically present with the wit-1

ness at the time the deposition is given. Notice of a telephonic deposition shall relate 2

the following information: 3

(a) That the deposition is to be taken by telephone; 4

(b) The address and telephone number from which the call will be placed to 5

the witness; 6

(c) The address and telephone number of the place where the witness will 7

answer the deposition call; and 8

(d) Opposing parties may participate in the deposition either at the place 9

where the deposition is being given, at the place the telephone call is placed to the 10

witness, or by conference call. If a party elects to participate by conference call, that 11

party shall contribute proportionate costs of the conference call. 12

(3) A party seeking a subpoena from an Administrative Law Judge shall use 13

the Subpoena Form SUB or Subpoena Duces Tecum Form SUB-DT, and provide it 14

to the Administrative Law Judge to whom the case is assigned, or if no assignment 15

has been made then it shall be sent to the Chief Administrative Law Judge. This 16

shall be done a minimum of ten (10) days prior to the date of the appearance being 17

requested, no motion shall be filed. A subpoena shall be served in accordance with 18

Civil Rules 5.02, 45.03 or 45.05, whichever is applicable. 19

(4) The commissioner [executive director] shall establish a medical qualifica-20

tions index. 21

(a) An index number shall be assigned to a physician upon the filing of the 22

physician's qualifications. 23

34

(b) Any physician who has been assigned an index number may offer the as-1

signed number in lieu of stating qualifications. 2

(c) Qualifications shall be revised or updated by submitting revisions to the 3

commissioner [executive director]. 4

(d) A party may inquire further into the qualifications of a physician. 5

Section 18. Hearings. (1) At the hearing, the parties shall present proof con-6

cerning contested issues. If the plaintiff or plaintiff's counsel fails to appear, the ad-7

ministrative law judge may dismiss the case for want of prosecution, or if good 8

cause is shown, the hearing may be continued. 9

(2) At the conclusion of the hearing, the claim shall be considered submitted 10

[taken under submission] immediately and [or] briefs may be ordered. 11

(3) Briefs shall not exceed fifteen (15) pages in length. Reply briefs shall be 12

limited to five (5) pages. Permission to increase the length of a brief shall be sought 13

by motion. 14

(4) The administrative law judge may announce his decision at the conclusion 15

of the hearing or may [shall] defer decision until rendering a written opinion. 16

(5) A decision shall be rendered no later than sixty (60) days following the 17

hearing. 18

(6) The time of filing a petition for reconsideration or notice of appeal shall not 19

begin to run until after the "date of filing" of the written opinion. 20

(7) An opinion or other final order of an administrative law judge shall not be 21

deemed filed [final] until the administrative law judge has certified that a certification 22

of mailing was sent to: 23

35

(a) An attorney who has entered an appearance for a party; or 1

(b) The party if an attorney has not entered an appearance. 2

(8) The parties with approval of the administrative law judge may waive a final 3

hearing. Waiver of a final hearing shall require agreement of all parties and the ad-4

ministrative law judge. The claim shall be taken under submission as of the date of 5

the order allowing the waiver of hearing. A decision shall be rendered no later than 6

sixty (60) days following the date of the order allowing the waiver of hearing. 7

(9) Upon written agreement by the parties and upon approval by the adminis-8

trative law judge, the parties may utilize mediation to attempt resolution of the claim. 9

The parties shall agree upon the time, place, mediator, and terms of mediation, and 10

report the same in writing to the administrative law judge. Any costs for mediation, 11

unless agreed otherwise, shall be born proportionately by the parties. 12

(10) If a hearing has been scheduled and the parties settle the claim, the 13

administrative law judge shall be notified as soon as practicable. If the parties fail to 14

notify the administrative law judge of the need to cancel a hearing for settlement or 15

any other reason less than two (2) full business days before the date of the 16

scheduled hearing, the parties shall pay their proportionate share of a $75.00 court 17

reporter appearance fee, and, if applicable, the appearance fee for an interpreter 18

obtained for the hearing by the Department. 19

Section 19. Petitions for Reconsideration. (1) If applicable, a party shall file a 20

petition for reconsideration within fourteen (14) days of the date of filing of a final or-21

der or award of an administrative law judge, clearly stating the patent error which the 22

petitioner seeks to have corrected and setting forth the authorities upon which peti-23

36

tioner relies. The party filing the petition for reconsideration shall tender a proposed 1

order granting the relief requested. 2

(2) A response shall be served within ten (10) days after the date of filing of 3

the petition. 4

(3) The administrative law judge shall act upon the petition within ten (10) 5

days after the response is due. 6

Section 20. Benefit Calculations for Settlements. (1) For computing lump sum 7

settlements, the employer shall utilize the prescribed discount rate for its weeks of 8

liability only, not for the entire award period. A discount shall not be taken on past 9

due benefits by the employer or Special Fund/Workers’ Compensation Funds. Lump 10

sum settlements shall be calculated as follows: 11

(a) Determine the entire lump sum liability: 12

1. Compute the remaining weeks of liability in the award by subtracting the 13

number of weeks past due from the entire number of weeks in the award; 14

2. Discount the number of weeks remaining in the award at the prescribed 15

discount rate; 16

3. Multiply the weekly benefit rate by the discounted number of weeks re-17

maining (subparagraph 2 of this paragraph) in the award. This product shall equal 18

the entire future lump sum liability for the award; and 19

4. Add the amount of past due benefits to the future lump sum liability award 20

(subparagraph 3 of this paragraph). The sum shall represent the entire lump sum 21

value of the award. 22

(b) Determine the employer's lump sum liability as follows: 23

37

1. The employer's future liability shall be computed by determining its total 1

weeks of liability less the number of weeks of liability past due. 2

2. The number of weeks remaining shall be discounted at the prescribed dis-3

count rate and multiplied by the amount of the weekly benefit. 4

3. Multiply the number of past due weeks by the amount of the weekly bene-5

fit. 6

4. The employer's entire liability for a lump sum payment shall be determined 7

by adding the results of subparagraphs 2 and 3 of this paragraph. 8

(c) Determine the Special Fund['s]/Workers’ Compensation Funds’ portion of 9

the lump sum liability by subtracting the value of the employer's liability in lump sum 10

(paragraph (b) of this subsection) from the entire value of the lump sum settlement 11

(paragraph (a) of this subsection). The remainder shall be the Special 12

Fund['s]/Workers’ Compensation Funds’ lump sum liability. 13

(2) If the employer settles its liability for income benefits with the employee for 14

a lump sum payment and a determination is made of the Special Fund['s]/Workers’ 15

Compensation Funds’ liability, the Special Fund['s]/Workers’ Compensation Funds’ 16

portion of income benefits shall be paid commencing with the date of approval of the 17

employer's settlement and continuing for the balance of the compensable period. 18

(3) In computing settlements involving periodic payments, the employer shall 19

pay its liability over the initial portion of the award, based on the number of weeks its 20

liability bears to the entire liability for the claim. The Special Fund/Workers’ Com-21

pensation Funds shall make all remaining payments for the balance of the compen-22

sable period. 23

38

(4) Pursuant to KRS 342.265, election by the Special Fund/Workers’ Com-1

pensation Funds to settle on the same terms as the employer shall mean the Spe-2

cial Fund/Workers’ Compensation Funds agrees to settle in the same manner as the 3

employer in either a discounted lump sum or in periodic payments based upon its 4

proportionate share of the permanent disability percentage paid by the employer. 5

"Same terms" shall not include any additional payments the employer included for 6

buy out of medical expenses, temporary total disability, rehabilitation, or other bene-7

fits for which the Special Fund/Workers’ Compensation Funds is not liable. 8

(5) Parties involved in a lump-sum settlement of future periodic payments 9

shall use the discount factor computed in accordance with KRS 342.265(3). 10

(6) Parties who reach an agreement pursuant to KRS 342.265 shall file the 11

agreement on the applicable form as listed below which form shall reflect the original 12

signature of the parties: 13

(a) Form 110-F, Agreement as to Compensation and Order Approving Set-14

tlement- Fatality; 15

(b) Form 110-I, Agreement as to Compensation and Order Approving Settle-16

ment- Injury; 17

(c) Form 110-O, Agreement as to Compensation and Order Approving Set-18

tlement - Occupational Disease; or 19

(d) Form 110-CWP, Agreement as to Compensation and Order Approving 20

Settlement - Coal Workers' Pneumoconiosis. 21

(7) Except for an Agreement containing a Medicare set aside agreement, a 22

settlement agreement submitted for approval that contains information or agree-23

39

ments that are outside the provisions and purview of Chapter 342 of the Kentucky 1

Revised Statutes shall not be approved and shall be returned to the parties. 2

Section 21. Agreements. (1) Unless the settlement agreement is completed 3

and tendered to the administrative law judge for immediate approval at the benefit 4

review conference or hearing, the defendant employer or its representative shall 5

draft the settlement agreement and provide the signed original to the adverse party 6

no later than fourteen (14) days after the date the parties agree to settle. The 7

agreement shall be signed by all parties and tendered to the administrative law 8

judge for approval no more than thirty (30) days after the date the parties agreed to 9

settle. 10

(2) Once an order has been approved by the administrative law judge, 11

payment must be made within twenty-one (21) days after the date of the order 12

approving settlement. 13

(3) Any settlement agreement that contains provisions that purport to settle 14

matters outside the scope of the Workers’ Compensation Act, except for provisions 15

relating to Medicare Set Aside Agreement (MSA), shall not be approved and will be 16

returned to the parties. 17

(4) Failure to satisfy the time requirements above unless solely the fault of the 18

claimant or claimant’s counsel shall result in the addition of eighteen (18%) per cent 19

interest per annum on all benefits agreed upon in the settlement for any period of 20

delay beyond the time proscribed in subsection (2). 21

Section 22 [21]. Review of Administrative Law Judge Decisions. (1) General. 22

(a) Pursuant to KRS 342.285(1), decisions of administrative law judges shall 23

40

be subject to review by the Workers’ Compensation Board in accordance with the 1

procedures set out in this administrative regulation. 2

(b) Parties shall insert the language "Appeals Branch" or "Workers’ Compen-3

sation Board" on the outside of an envelope containing documents filed in an appeal 4

to the board. 5

(2) Time and format of notice of appeal. 6

(a) Within thirty (30) days of the date a final award, order, or decision ren-7

dered by an administrative law judge pursuant to KRS 342.275(2) is filed, any party 8

aggrieved by that award, order, or decision may file a notice of appeal to the Work-9

ers’ Compensation Board. 10

(b) As used in this section, a final award, order or decision shall be deter-11

mined in accordance with Civil Rule 54.02(1) and (2). 12

(c) The notice of appeal shall: 13

1. Denote the appealing party as the petitioner; 14

2. Denote all parties against whom the appeal is taken as respondents; 15

3. Name the administrative law judge who rendered the award, order, or de-16

cision appealed from as a respondent; 17

4. If appropriate pursuant to KRS 342.120 or 342.1242, name the director of 18

the Division of Workers’ Compensation Funds as a respondent; [and] 19

5. Include the claim number; and [.] 20

6. The date of the final award, order or decision appealed. 21

(d) Cross-appeal. 22

1. Any party may file a cross-appeal through notice of cross-appeal filed with-23

41

in ten (10) days after the notice of appeal is served. 1

2. A cross-appeal shall designate the parties as stated in the notice of appeal. 2

(e) Failure to file the notice within the time allowed shall require dismissal of 3

the appeal. 4

(f) The commissioner [executive director] shall issue an acknowledgement to 5

all parties of the filing of a notice of appeal or cross-appeal. 6

(3) Number of copies and format of petitioner's brief. 7

(a) The petitioner's brief shall be filed within thirty (30) days of the filing of the 8

notice of appeal. 9

(b) An original and two (2) copies of the petitioner's brief shall be filed with the 10

Commissioner [Executive Director] of the Department [Office] of Workers’ Claims. 11

(c) The petitioner's brief shall conform in all respects to Civil Rule 7.02(4). 12

(4) Petitioner's brief. The petitioner's brief shall designate the parties as peti-13

tioner (or petitioners) and respondent (or respondents) and shall be drafted in the 14

following manner: 15

(a)1. The name of each petitioner and each respondent shall be included in 16

the brief. 17

2. The petitioner shall specifically designate as respondents all adverse par-18

ties. 19

3. The administrative law judge who rendered the award, order, or decision 20

appealed from shall be named as a respondent. 21

(b) The workers’ compensation claim number, or numbers, shall be set forth 22

in all pleadings before the Workers’ Compensation Board. 23

42

(c) The petitioner's brief shall state the date of entry of the final award, order, 1

or decision by the administrative law judge. 2

(d) The petitioner's brief shall state whether any matters remain in litigation 3

between the parties in any forum or court other than those for which an appeal is 4

being sought. 5

(e) The petitioner's brief shall include a statement of the "Need for Oral Ar-6

gument" designating whether the party requests an argument to be heard orally be-7

fore the board and, if so, a brief statement setting out the reason or reasons for the 8

request. 9

(f) The petitioner's brief shall include a "Statement of Benefits Pending Re-10

view" which shall set forth whether the benefits designated to be paid by the award, 11

order, or decision for which review is being sought have been instituted pursuant to 12

KRS 342.300. 13

(g) The organization and contents of the petitioner's brief for review shall be 14

as follows: 15

1. A brief "Introduction" shall indicate the nature of the case. 16

2. A "Statement of Points and Authorities" shall set forth, succinctly and in the 17

order in which they are discussed in the body of the argument, the petitioner’s con-18

tentions with respect to each issue of law on which he relies for a reversal, listing 19

under each the authority cited on that point and the respective pages of the brief on 20

which the argument appears and on which the authorities are cited. This require-21

ment may be eliminated for briefs of five (5) or less pages. 22

3. A "Statement of the Case" shall consist of a chronological summary of the 23

43

facts and procedural events necessary to an understanding of the issues presented 1

by the appeal, with ample reference to the specific pages of the record supporting 2

each of the statements narrated in the summary. 3

4. An "Argument" shall: 4

a. Conform with the statement of points and authorities, with ample support-5

ive references to the record and citations of authority pertinent to each issue of law; 6

and 7

b. Contain, at the beginning of the argument, a statement with reference to 8

the record showing whether the issue was properly preserved for review and, if so, 9

in what manner. 10

5. A "Conclusion" shall set forth the specific relief sought from the board. 11

6. An "Appendix" shall contain: 12

[a. Copies of the final award, order, or decision of the administrative law 13

judge from which review is being sought; 14

b. Any petitions for reconsideration filed by the parties pursuant to KRS 15

342.281; 16

c. The administrative law judge’s order addressing any petitions for reconsid-17

eration;] 18

a[d]. Copies of cases cited from federal courts and foreign jurisdictions, if any, 19

upon which reliance is made; and 20

b[e[. Copies of prior board opinions in accordance with subsection (9) of this 21

section. 22

7. Civil Rule 76.28(4)(c) shall govern the use of unpublished opinions of the 23

44

Court of Appeals or Supreme Court. 1

(5) Respondent's brief, combined brief, or cross-petitioner's brief. 2

(a) Each respondent shall file an original and two (2) copies of a brief, com-3

bined brief if cross-petition or cross-petitioner's brief, within thirty (30) days of the 4

date on which the petitioner's brief was filed with the Commissioner [Executive Di-5

rector] of the Department [Office] of Workers’ Claims. 6

(b) The respondent's brief shall include a statement of the "Need for Oral Ar-7

gument" similar to the statement required of the petitioner by subsection (4)(e) of 8

this section. 9

(c) The respondent's brief shall include a "Statement of Benefits Pending Re-10

view" similar to the statement required of the petitioner by subsection (4)(f) of this 11

section. 12

(d) Respondent’s counter-argument shall follow the organization and content 13

of the petitioner's brief as set forth in subsection (4)(g) of this section. 14

(6) Reply brief. 15

(a) If applicable, the petitioner may file a reply brief within ten (10) days after 16

the date on which the respondent's brief was served or due, whichever is earlier. 17

(b) The organization and contents of the reply brief shall be as provided in 18

Civil Rule 76.12(4)(e), except that an index, or contents page shall not be required. 19

(c) If a cross-appeal has been filed, the cross-petitioner's reply brief may be 20

served within ten (10) days after the date on which the last cross-respondent's brief 21

was served or due, whichever is earlier. 22

(7) Certification. The petitioner's brief, respondent's brief, and reply brief shall 23

45

be signed by each party or his counsel and that signature shall constitute a certifica-1

tion that the statements contained in the document are true and made in good faith. 2

(8) Service of notice of appeal, cross-appeal, petitioner's brief, respondent's 3

brief, and reply briefs on adverse parties. 4

(a) Before filing a notice of appeal, cross-appeal, or any brief with the Com-5

missioner [Executive Director} of the Department [Office] of Workers’ Claims, a party 6

shall serve, in the manner provided by Civil Rule 5.02, a copy of the document on 7

each adverse party. 8

(b) Every brief filed in an appeal to the Workers' Compensation Board shall 9

bear, on the front cover, a signed statement, in accordance with Civil Rule 5.03 by 10

the attorney or party that service has been made as required by paragraph (a) of 11

this subsection. The statement shall identify by name each person served. 12

(c) The name of each attorney submitting a document to the Workers' Com-13

pensation Board with a current address, [and] telephone number and email address 14

shall appear following its "conclusion". 15

(d) If the respondent is also a cross-petitioner, the respondent may file a 16

combined brief or separate cross-petitioner's brief which shall address issues raised 17

by the cross-appeal. 18

(e) If a separate cross-petitioner's brief is filed, the format shall be the same 19

as a respondent's brief. 20

(9) Form of citations. 21

(a) All citations of Kentucky statutes and reported decisions of the Court of 22

Appeals and Supreme Court shall conform to the requirements of Civil Rule 23

46

76.12(4)(g). 1

(b) All citations of Kentucky unpublished decisions shall conform to the re-2

quirements of Civil Rule 76.28(4)(c). 3

(c) Citations for prior decisions of the board shall include the style of the case, 4

the appropriate claim or case number, and the date the decision was rendered. 5

(10) Number of pages. 6

(a) The petitioner's brief and the respondent's brief shall be limited to twenty 7

(20) pages each. 8

(b) Reply briefs shall be limited to five (5) pages. 9

(c) Combined briefs shall be limited to twenty-five (25) pages. 10

(d) [The parties shall make every effort to comply with the above page limita-11

tions. 12

(e)] Permission to increase the length of a brief shall be sought by motion, but 13

shall only be granted upon a showing of good cause. Failure to obtain prior permis-14

sion shall be grounds for the assessment of sanctions as set forth in paragraph (11) 15

below. 16

(11) Sanctions. Failure of a party to file a brief conforming to the requirements 17

of this administrative regulation or failure of a party to timely file a response may be 18

grounds for the imposition of one (1) or more of the following sanctions: 19

(a) Affirmation or reversal of the final order; 20

(b) Rejection of a brief that does not conform as to organization or content, 21

with leave to refile in proper form within ten (10) days of the date returned. If timely 22

refiling occurs, the filing shall date back to the date of the original filing; 23

47

(c) Striking of an untimely response; 1

(d) A fine of not more than $500; or 2

(e) Dismissal. 3

(12) Motions. 4

(a) [Except for a brief, a motion or pleading shall require] T[t]he original of a 5

motion or pleading shall [to] be filed with the Commissioner [Executive Director] of 6

the Department [Office] of Workers’ Claims. 7

(b) The style of the case, including the claim number and title of the motion or 8

pleading, shall appear on the first page of the motion or pleading. 9

(c) The party filing a motion may file a brief memorandum supporting the mo-10

tion and opposing parties may file brief memoranda in response. To be considered, 11

a response shall be filed within ten (10) days of the motion. Further responses shall 12

not be filed. 13

(d) Every motion and response, the grounds of which depend upon the exist-14

ence of facts not in evidence, shall be supported by affidavits demonstrating those 15

facts. 16

(e) Every motion and response, the grounds of which depend upon the exist-17

ence of facts which the moving or responding party believes are shown in the evi-18

dence or are admitted by the pleadings, shall make reference to the place in the 19

record where that evidence or admission is found. 20

(f) Before filing a motion or pleading with the Commissioner [Executive Direc-21

tor] of the Department [Office] of Workers’ Claims, a party shall serve, in the manner 22

provided by Civil Rule 5.02, a copy of the document on each adverse party. 23

48

(g) A motion to extend the time in which to file a brief or other pleading in an 1

appeal shall be filed at least five (5) days prior to the date sought to be extended. 2

(h) [(g)] The filing of a motion to dismiss an appeal shall stay the remaining 3

time for the filing of a responsive pleading. If the petitioner's brief has been previous-4

ly filed and a motion to dismiss has been overruled, the respondent shall have fif-5

teen (15) days from the order to file a respondent's brief. 6

(h) Except for motions that call for final disposition of an appeal, any board 7

member designated by the chairman may dispose of a motion. An intermediate or-8

der may be issued on the signature of any board member. 9

(13) Oral arguments. 10

(a) Upon motion of a party or upon the board’s own motion, the board may 11

order an oral argument on the merits in a case appealed from a decision, award or 12

order of an administrative law judge. 13

(b) Oral arguments shall occur on a date and at a time and location specified 14

by the board. 15

(c) Appeals designated for oral argument shall be held in abeyance and all 16

subsequent appeal time in the case shall be calculated from the date of the oral ar-17

gument. 18

(14) Continuation of benefits pending appeal. 19

(a) Benefits awarded by an administrative law judge which are not contested 20

shall be paid during the pendency of an appeal. A motion requesting the payment of 21

these benefits shall not be required. Uncontested benefits shall include income ben-22

efits at an amount lesser than what was awarded if the issue on appeal addresses 23

49

the amount of benefits to be awarded as opposed to the entitlement to income bene-1

fits. 2

(b) Upon the motion of a party pursuant to KRS 342.300, the board may order 3

payment of benefits pending appeal in conformity with the award, decision, or order 4

appealed from. 5

(c) Entitlement to relief pursuant to KRS 342.300 shall be granted upon mo-6

tion establishing that: 7

1. The probability of the existence in fact of: 8

a. Financial loss; 9

b. Privation, suffering, or adversity resulting from insufficient income; or 10

c. Detriment to the moving party’s property or health if payment of benefits is 11

not instituted; and 12

2. There exists a reasonable likelihood that the moving party will prevail on 13

appeal. 14

(d) Any response to a motion for continuation of an award pending appeal 15

shall be served within ten (10) days from the date of the request and, thereafter, the 16

request shall be ripe for a decision. 17

(e) Entitlement to relief by the moving party and responses shall be shown 18

by: 19

1. Affidavit if the grounds for the motion or response depend upon the exist-20

ence of facts not in evidence; or 21

2. Supporting memorandum citing to evidence existing within the record and 22

making reference to the place in the record where that evidence is found. 23

50

(15) Decisions. 1

(a) The board shall: 2

1. Enter its decision affirming, modifying, or setting aside the order appealed 3

from; or 4

2. Remand the claim to an administrative law judge for further proceedings. 5

(b) Motions for reconsideration shall not be permitted. 6

(c) The decision of the administrative law judge shall be affirmed if: 7

1. A board member is unable to sit on a decision; and 8

2. The remaining two (2) board members cannot reach an agreement on a 9

final disposition. 10

(16) Appeal from board decisions. If applicable, pursuant to KRS 342.290, the 11

decision of the board shall be appealed to the Kentucky Court of Appeals as provid-12

ed in Civil Rule 76.25. 13

Section 23 [22]. Coverage - Insured Status. Upon the filing of an application 14

for resolution of claim, the commissioner [executive director] shall ascertain whether 15

the employer or any other person against whom a claim is filed and who is not ex-16

empted by KRS 342.650 has secured payment of compensation by obtaining insur-17

ance coverage or qualifying as a self-insurer pursuant to KRS 342.340. If an em-18

ployer does not have insurance coverage or qualify as a self-insurer, the commis-19

sioner [executive director] shall notify the administrative law judge and all parties by 20

service of a certification of no coverage. 21

Section 24 [23]. Withdrawal of Records. (1) A portion of any original record of 22

the department [office] shall not be withdrawn except upon an order of the commis-23

51

sioner [executive director], an administrative law judge, or a member of the board. 1

(2)(a) All physical exhibits, including x-rays, shall be disposed of sixty (60) 2

days after the order resolving the claim has become final except x-rays filed in coal 3

workers' pneumoconiosis claims which shall be returned to the party who filed the x-4

ray. 5

(b) A party filing an exhibit may make arrangements to claim an exhibit prior 6

to that time. 7

(c)1. If an unclaimed exhibit has no money value, it shall be destroyed. 8

2. If an unclaimed exhibit has a value of more than $100, it shall be sold as 9

surplus property. 10

3. If an unclaimed exhibit has a value of less than $100, it shall be donated to 11

the appropriate state agency. 12

4. If an unclaimed exhibit has historic value, it shall be sent to the state ar-13

chives. 14

Section 25. Time for payment of benefits in litigated claims. (1) If a disputed 15

claim is litigated and an Opinion, Order or Award is entered awarding benefits to a 16

claimant and no appeal is taken that prevents finality of the Opinion, Order or 17

Award: 18

(a) all past benefits due under the award shall be paid no later than 19

twenty-one (21) days after expiration of the last appeal date. 20

(b) any attorney fee shall be paid no later than thirty (30) days after the 21

date of the administrative law judge’s order approving fee. 22

(2) If an appeal(s) is taken from an Opinion, Order or Award awarding 23

52

benefits to a claimant, any benefits shall be paid no later than fifteen (15) days after 1

the decision becomes final and no further appeal can be taken. Any attorney fee 2

shall be paid no later than thirty (30) days after the decision becomes final, or the 3

date of the administrative law judge’s order approving fee, whichever is later. 4

Section 26 [24]. Sanctions. (1) Pursuant to KRS 342.310, an administrative 5

law judge or the board may assess costs upon a determination that the proceedings 6

have been brought, prosecuted, or defended without reasonable grounds. 7

(2) A sanction may be assessed against an offending attorney or representa-8

tive rather than against the party. 9

(3) If a party is a governmental agency and attorney's fees are assessed, the 10

fees shall include fees for the services of an attorney in public employment, meas-11

ured by the reasonable cost of similar services had a private attorney been retained. 12

(4) Failure of a party to timely file a pleading or document or failure to comply 13

with the procedures required by this administrative regulation may be treated by an 14

administrative law judge or the board as prosecuting or defending without reasona-15

ble grounds. 16

Section 27 [25]. Payment of Compensation from Uninsured Employers' Fund. 17

(1) Payment from the Uninsured Employers' Fund of compensation shall be made 18

upon the determination by an administrative law judge that the responsible employer 19

failed to secure payment of compensation as provided by KRS 342.340; and 20

(a) Thirty (30) days have expired since the finality of an award or issuance of 21

an interlocutory relief order and a party in interest certifies the responsible employer 22

has failed to initiate payments in accordance with that award; 23

53

(b) Upon showing that the responsible employer has filed a petition under any 1

section of the Federal Bankruptcy Code; or 2

(c) The plaintiff or any other party in interest has filed in the circuit court of the 3

county where the injury occurred an action pursuant to KRS 342.305 to enforce 4

payment of the award against the uninsured employer, and there has been default in 5

payment of the judgment by the employer. 6

(2) The plaintiff may by motion and affidavit demonstrate compliance with this 7

section and request an administrative law judge to order payment from the Unin-8

sured Employers' Fund in accordance with KRS 342.760. 9

(3) This section shall not be construed to prohibit the voluntary payment of 10

compensation by an employer, or any other person liable for the payment, who has 11

failed to secure payment of compensation as provided by KRS Chapter 342, the 12

compromise and settlement of a claim, or the payment of benefits by the Special 13

Fund/Workers’ Compensation Funds or Coal Workers' Pneumoconiosis Fund. 14

(4) Form UEF-P, Motion for Payment from Uninsured Employers' Fund, pro-15

vided by the department [office] may be used by the employee. 16

Section 28 [26]. Forms. The Department [Office] of Workers' Claims shall not 17

accept applications or forms in use prior to the forms required by and incorporated 18

by reference in this administrative regulation. Outdated applications or forms submit-19

ted shall not be filed [be rejected] and shall be returned to the applicant or person 20

submitting the form. [If the application or form is resubmitted on the proper form 21

within twenty (20) days of the date it was returned, the filing shall date back to the 22

date the application or form was first received by the executive director. Otherwise, 23

54

the date of the second receipt shall be the filing date.] 1

Section 29 [27]. Incorporation by Reference. (1) The following material is in-2

corporated by reference: 3

(a) Form 101, "Application for Resolution of Injury Claim", (revised April 4

2006), Department [Office] of Workers' Claims; 5

(b) Form 102-0D, "Application for Resolution of Occupational Disease Claim", 6

(revised June, 2005), Department [Office] of Workers' Claims; 7

(c) Form 103, "Application for Resolution of Hearing Loss Claim", (June 2005 8

Edition), Department [Office] of Workers' Claims; 9

(d) Form 104, "Plaintiff's Employment History", (January 1, 1997 Edition), De-10

partment [Office] of Workers' Claims; 11

(e) Form 105, "Plaintiff's Chronological Medical History", (January 1, 1997 12


(f) Form 106, "Medical Waiver and Consent", (July 2003 Edition), Department 14

[Office] of Workers' Claims; 15

(g) Form 107-I, "Medical Report - Injury", (revised April 2005), Department 16


(h) Form 107-P, "Medical Report - Psychological", (revised April 2005), De-18


(i) Form 108-OD, "Medical Report - Occupational Disease, (April 2005 Edi-20

tion), Department [Office] of Workers' Claims; 21

(j) Form 108-CWP, "Medical Report - Coal Workers' Pneumoconiosis", (April 22

2005 Edition), Department [Office] of Workers' Claims; 23

55

(k) Form 108-HL, "Medical Report - Hearing Loss", (revised April 2005), De-1


(l) Form 109, "Attorney Fee Election", (March 15, 1995 Edition), Department 3


(m) Form 110-F, "Agreement as to Compensation and Order Approving Set-5

tlement - Fatality", (revised January 2005); 6

(n) Form 110-I, "Agreement as to Compensation and Order Approving Set-7

tlement - Injury", (revised July 2006), Department [Office] of Workers' Claims; 8

(o) Form 110-O, "Agreement as to Compensation and Order Approving Set-9

tlement - Occupational Disease", (revised July 2006), Department [Office] of Work-10

ers' Claims; 11

(p) Form 110-CWP, "Agreement as to Compensation and Order Approving 12

Settlement - Coal Workers' Pneumoconiosis", (July 2002 Edition), Department [Of-13

fice] of Workers' Claims; 14

(q) Form 111- Injury and Hearing Loss, "Notice of Claim Denial or Ac-15

ceptance", (January 1, 1997 Edition), Department [Office] of Workers' Claims; 16

(r) Form 111-OD, "Notice of Claim Denial or Acceptance", (January 1, 1997 17


(s) Form 115, "Social Security Release Form", (January 1, 1997 Edition); and 19

Department [Office] of Workers' Claims; 20

(t) Form AWW - 1, "Average Weekly Wage Certification ", (January 1, 1997 21


(u) Form MIR-1, Motion for Interlocutory Relief (May 29, 1997 Edition); 23

56

(v) Form MIR-2, Affidavit for Payment of Medical Expenses (May 29, 1997 1

Edition); 2

(w) Form MIR-3, Affidavit for Payment of Temporary Total Disability (May 29, 3

1997 Edition); 4

(x) Form MIR-4, Affidavit Regarding Rehabilitation Services (May 29, 1997 5

Edition); 6

(y) Form VRT, Petition for Vocational Rehabilitation Training (April 2005 Edi-7

tion); 8

(z) Form MTR-1, Motion to Reopen by Employee (May 29, 1997 Edition); 9

(aa) Form MTR-2, Motion to Reopen KRS 342.732 Benefits (May 29, 1997 10

Edition); 11

(bb) Form MTR-3, Motion to Reopen by Defendant (May 29, 1997 Edition); 12

(cc) Form WVR, Joint Motion and Agreement to Waive Vocational Rehabilita-13

tion Evaluation (April 2005 Edition); 14

(dd) Form UEF-P, Motion for Payment from Uninsured Employers' Fund (April 15

2005 Edition); [and] 16

(ee) Form 11, Motion to Substitute Party and Continue Benefits (January 31, 17

2005);[.] 18

(ff) Appendix F, Fatality (January 14, 2011); 19

(gg) Appendix SVC, Safety Violation, Claimant (January 14, 2011); 20

(hh) Appendix SVE, Safety Violation, Employer (January 14, 2011); 21

(ii) Form SUB, Subpoena (January 14, 2011); and 22

(jj) Form SUB-DT, Subpoena Duces Tecum (January 14, 2011). 23

57

(2) This material may be inspected, copied, or obtained, subject to applicable 1

copyright law, at the Department [Office] of Workers' Claims, Prevention Park, 657 2

Chamberlin Avenue, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 3

4:30 p.m. 4

58

1/14/11 ___________________________________ ___________________ Dwight T. Lovan, Commissioner Date Department of Workers’ Claims

59

A public hearing on this administrative regulation shall be held on February

24, 2011, at 1:00 p.m. (EST) at the offices of the Department of Workers’ Claims,

Prevention Park, 657 Chamberlin Avenue, Frankfort, Kentucky 40601. Individuals

interested in being heard at this hearing shall notify this agency in writing five (5)

workdays prior to the hearing, of their intent to attend. If no notification of intent to

attend the hearing is received by that date, the hearing may be cancelled. This

hearing is open to the public. Any person who wishes to be heard will be given an

opportunity to comment on the proposed administrative regulation. A transcript of

the public hearing will not be made unless a written request for a transcript is made.

If you do not wish to be heard at the public hearing, you may submit written

comments on the proposed administrative regulation. Written comments shall be

accepted until close of business on February 28, 2011. Send written notification of

intent to be heard at the public hearing or written comments on the proposed

administrative regulation to the contact person.

CONTACT PERSON: Charles E. Lowther, General Counsel

Department of Worker’s Claims Prevention Park 657 Chamberlin Avenue Frankfort, Kentucky 40601 Telephone Number: (502) 782-4464 Fax Number: (502) 564-0681

60

REGULATORY IMPACT ANALYSIS

AND TIERING STATEMENT Administrative Regulation #: 803 KAR 25:010 Contact person: Charles E. Lowther (1) Provide a brief summary of: (a) What this administrative regulation does: This administrative regulation

establishes the procedure for the adjustment and practice of claims for workers’ compensation.

(b) The necessity of this administrative regulation: Pursuant to KRS 342.260(1) and

KRS 342.285(1), the Commissioner is required to promulgate administrative regulations necessary to carry on the work of the administrative law judges and the Workers’ Compensation Board.

(c) How this administrative regulation conforms to the content of the authorizing

statutes: This regulation establishes an orderly procedure for the Department of Workers’ Claims’ administrative law judges and the Workers’ Compensation Board to carry on the adjudication of workers’ compensation claims and appeals.

(d) How this administrative regulation currently assists or will assist in the effective

administration of the statutes: The administrative regulation is necessary for the orderly and prompt resolution and adjudication of workers’ compensation claims and appeals. All parties to a workers’ compensation claim should be afforded a process and procedure for prompt, orderly and fair resolution and adjudication.

(2) If this is an amendment to an existing administrative regulation, provide a brief

summary of: (a) How the amendment will change this existing administrative regulation: The

amendment revises the timelines and filing procedures for a workers’ compensation claim so as to expedite and streamline the presentation of proof and to minimize unnecessary delay and costs in workers’ compensation claims. The amendment also uses advances in technology to simplify and expedite the processing of claims.

(b) The necessity of the amendment to this administrative regulation: The current

practice regulation was implemented in 2006. The amended regulation simplifies and expedites the process and allows the use and introduction of advances in technology for revision of the claims process and forms used in that process.

(c) How the amendment conforms to the content of the authorizing statutes: The

amendment will expedite and simplify the resolution and adjudication of claims and allow the Department of Workers’ Claims to carry out its work more efficiently.

(d) How the amendment will assist in the effective administration of the statutes: The

61

amendment will expedite processing of workers’ compensation claims. (3) List the type and number of individuals, businesses, organizations, or state and local

governments affected by this administrative regulation: The amended regulation affects all injured workers and employers, including governmental entities subject to the Workers’ Compensation Act, all physicians and medical providers providing services to injured workers, insurance carriers, self-insured employers, self-insured groups, third-party administrators, and their attorneys.

(4) Provide an analysis of how the entities identified in question (3) will be impacted by

either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

(a) List the actions that each of the regulated entities identified in question (3) will

have to take to comply with this administrative regulation or amendment: Those regulated entities identified in question (3) will have to familiarize themselves with the amended procedure and resolve or adjudicate workers’ compensation claims in accordance with the amended regulation.

(b) In complying with this administrative regulation or amendment, how much will it

cost each of the entities identified in question (3): The amended regulation will be available for no additional cost through the web site of the Legislative Research Commission. Thus, there should be no additional cost for access to the regulation. It is anticipated that increased adjudicatory efficiencies will reduce overall litigation costs for the identified entities.

(c) As a result of compliance, what benefits will accrue to the entities identified in

question (3): The identified entities will receive prompt, fair and orderly resolution and adjudication of workers’ compensation claims and disputes.

(5) Provide an estimate of how much it will cost the administrative body to implement this

administrative regulation: (a) Initially: No additional costs (b) On a continuing basis: No continuing costs (6) What is the source of the funding to be used for the implementation and enforcement

of this administrative regulation: The Department of Workers’ Claims normal operating budget is the source of funding.

(7) Provide an assessment of whether an increase in fees or funding will be necessary to

implement this administrative regulation, if new, or by the change if it is an amendment: There will be no increase in fees or funding to implement this amended regulation.

(8) State whether or not this administrative regulation established any fees or directly or

indirectly increased any fees: This amended regulation does not establish or directly

62

or indirectly increase any fees. (9) TIERING: Is tiering applied? (Explain why or why not) Tiering is not applied because

the amended procedure applies equally to all parties.

63

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT Regulation No. 803 KAR 25:010 Contact Person: Charles E. Lowther 1. Does this administrative regulation relate to any program, service, or requirements of a state or local government (including cities, counties, fire departments, or school districts)? Yes __√____ No _____ If yes, complete questions 2-4. 2. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? All parts of government with employees subject to KRS Chapter 342 are impacted. 3. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 342.260(1) and KRS 342.285(1) 4. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect. As an employer, there may be some minimal initial increased costs for implementation; however, it is anticipated that costs subsequently will be lowered. (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? No revenue is expected to be generated. (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? No revenue is expected to be generated. (c) How much will it cost to administer this program for the first year? No new administration costs are expected. (d) How much will it cost to administer this program for subsequent years? No new administration costs are expected. Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation. Revenues (+/-): Expenditures (+/-): Other Explanation:

64

803 KAR 25:010

PROCEDURE FOR ADJUSTMENTS OF CLAIMS

SUMMARY OF MATERIAL INCORPORATED BY REFERENCE AND

SUMMARY OF CHANGES TO MATERIAL INCORPORATED BY REFERENCE

FILED WITH LRC January 14, 2011

Summary of Material Incorporated by Reference

The amended procedures for adjustments of claims is prepared pursuant to KRS

342.260(1). Employees, employers, their representatives or counsel shall use the forms

adopted by the Department for processing and resolving claims.

Forms 104, 105, 106, 107-P, 109, 110-F, 110-O, 110-CWP, 111-OD, 115, MIR-1,

MIR-2, MIR-3, MIR-4, VRT, MTR-1, MTR-2, MTR-3, WVR, UEF-P, and 11 are forms

utilized for the practice or resolution of workers’ compensation claims by parties, their

representatives or counsel.

Summary of Changes to Material Incorporated by Reference

Form AWW-1, “Average Weekly Wage Certification”, is a 3-page form for

computing average weekly wage. It was amended by deleting questions on overtime,

gratuities, and paid vacations and holidays, and simplifying the method for calculating

weekly wages.

Form 108-CWP, “Medical Report - Coal Workers’ Pneumoconiosis”, is a 2-page

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form for physicians to provide information on medical treatment or evaluation in coal

workers’ compensation claims. The form was amended to protect the employee’s social

security identification.

Form 108-HL, “Medical Report - Hearing Loss”, is a 3-page form for physicians to

provide information on treatment or evaluation in hearing loss claims. The form was

amended to protect the employee’s social security identification and to address pre-

existing active impairment or disability due to hearing loss.

Form 108-OD, “Medical Report - Occupational Disease”, is a 3-page form for

physicians to provide information on treatment and evaluation of occupational diseases.

The form was amended to protect the employee’s social security identification.

Form 107-I, “Medical Report - Injury”, is a 3-page form used by physicians to

provide information on treatment and evaluation of injury claims. The form was

amended to protect the employee’s social security identification.

Form 103, “Application for Resolution of Hearing Loss Claim”, is a 2-page form

employees use to apply for benefits for loss due to occupational hearing loss. The form

was amended to simplify the application process.

Appendix SVE, “Safety Violation (Employer)”, is a new 1-page form created for

an employer to provide specifics on a defense of safety violation by claimant

Appendix SVC, “Safety Violation (Claimant)”, is a new 1-page form created for a

claimant to provide specific information on a claim of safety violation by the employer.

Appendix F, “Fatality”, is a new 1-page form created to provide detailed

information on dependents upon the decedent in a fatality claim.

Form SUB, “Subpoena”, is a 1-page form adopted by the Department for

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subpoenaing persons to appear in workers’ compensation proceedings.

Form SUB-DT, “Subpoena Duces Tecum” , is a 1-page form adopted by the

Department for the production of documents and objects in workers’ compensation

proceedings.

Form 102-OD, “Application for Resolution of Occupational Disease Claim”, is a form

for applying for occupational disease benefits. The amended 2-page form is simplified.

Form 111-Injury and Hearing Loss, “Notice of Claim Denial or Acceptance”, is an an-

swer for injury and hearing loss claims for employers to file. The amended form deletes

wage information and witness disclosures.

Form 101, “Application for Resolution of Injury Claim”, is a form for applying for ben-

efits due to injury. The form has been simplified.

Form 110-I, “Agreement as to Compensation and Order Approving Settlement-

Injury”, is a 3-page form for settlement. The amended form adds information for impair-

ment, factors, and application for or receipt of social security.

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