Introduction to Workers' Compensation Law CLE Seminar

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1 The Kentucky Bar Association Workers Compensation Law Section and Young Lawyers Section present: Introduction to Workers' Compensation Law CLE Seminar This program has been approved in Kentucky for 4.00 CLE Credits including 0.00 Ethics Credit.

2 Compiled and Edited by: The Kentucky Bar Association Office of Continuing Legal Education for Kentucky Bar Association Workers Compensation Law Section and Young Lawyers Section 2012 All Rights Reserved Published and Printed by: The Kentucky Bar Association, April Editor s Note: The materials included in this Introduction to Workers' Compensation Law seminar book are intended to provide current and accurate information about the subject matter covered. The program materials were compiled for you by volunteer authors. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of the Kentucky Bar Association disclaim liability therefor. Attorneys using these materials or information otherwise conveyed during the program, in dealing with a specific legal matter, have a duty to research original and current sources of authority.

3 Introduction to Workers' Compensation Law CLE Seminar Table of Contents Agenda... i Speakers... iii Workers' Compensation in Kentucky... 1 How to Practice a Workers' Compensation Claim: An "Outline" of Kentucky Workers' Compensation System & Procedure... 7 Calculation of Benefits The Perfect Appeal... 59

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5 Introduction to Workers' Compensation Law CLE Seminar April 17, 2012 Department of Workers' Claims Frankfort, Kentucky 12:15-12:40 p.m. Registration 12:40-12:45 p.m. Welcome & Introductions Stephanie Ross, Esq. Ferreri & Fogle, PLLC Carl N. Frazier Stoll Keenon Ogden, PLLC 12:45-1:45 p.m. History & Background of Workers' Compensation in Kentucky (1.00 CLE credit) Commissioner Hon. Dwight T. Lovan Kentucky Department of Workers' Claims 1:45-2:45 p.m. Nuts & Bolts of Workers' Compensation Practice (1.00 CLE credit) Chief ALJ J. Landon Overfield Kentucky Department of Workers' Claims 2:45-3:00 p.m. Break 3:00-4:00 p.m. Doing the Math: Calculating Benefits (1.00 CLE credit) James G. Fogle, Esq. Ferreri & Fogle, PLLC 4:00-5:00 p.m. The Perfect Appeal (1.00 CLE credit) Chairman Hon. Michael W. Alvey Kentucky Workers' Compensation Board i

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7 SPEAKERS Commissioner Dwight T. Lovan Kentucky Department of Workers' Claims 657 Chamberlain Avenue Frankfort, KY Dwight T. Lovan serves as Commissioner of the Kentucky Department of Workers' Claims in Frankfort. The Department of Workers' Claims is the agency primarily charged with administration of the Kentucky workers' compensation program and has exclusive jurisdiction over workers' compensation claims. Commissioner Lovan received his B.A. from Baylor University in 1971 and his J.D. from the University of Kentucky College of Law in Following law school, Commissioner Lovan worked for fifteen months as a staff attorney for the Kentucky Court of Appeals with responsibility for workers' compensation appeals. From 1979 to 1980, he practiced law in Owensboro, concentrating in the areas of workers' compensation and civil litigation. In May 1990, Commissioner Lovan was appointed Administrative Law Judge and remained in that position until August 1994, when he was named to the Kentucky Workers' Compensation Board. He served as Chairman of the Board before returning to private practice in the firm Jones, Walters, Turner and Shelton. In February 2008, he was appointed to serve as Commissioner of the Department of Workers' Claims. Commissioner Lovan is a member of the Kentucky Bar Association and its Workers' Compensation Law Section. Chief Administrative Law Judge J. Landon Overfield Kentucky Department of Workers Claims 657 Chamberlain Avenue Frankfort, KY Judge J. Landon Overfield is Chief Administrative Law Judge with the Kentucky Department of Workers Claims. He received his B.A. from the University of Kentucky in 1970 and his J.D. from the University of Kentucky College of Law in Judge Overfield was in private practice in Henderson, Kentucky, from April 1973 until November 1994, where his practice concentrated in personal injury and workers compensation law representing both plaintiffs and defendants. He was appointed as an Administrative Law Judge and has served in that capacity since November He was appointed Chief Administrative Law Judge effective September 1, Judge Overfield is a member of the Kentucky and Henderson County Bar Associations. James G. Fogle Ferreri & Fogle, PLLC 333 Guthrie Green, Suite 203 Louisville, KY Jim Fogle is a member/owner of Ferreri & Fogle, PLLC in Louisville, where he practices Kentucky workers' compensation defense. He received his B.A. from Morehead State University and his J.D. from the Northern Kentucky University Salmon P. Chase College of Law. iii

8 Mr. Fogle began his legal career as an attorney with the Special Fund from and worked as an associate and later a partner at Mills, Mitchell & Turner from prior to co-founding Ferreri & Fogle, PLLC. He was inducted into the American Bar Association's College of Workers' Compensation Lawyers in 2008 and included in Louisville Magazine's list of Best Workers' Compensation Lawyers that same year. He is a member of the American, Kentucky and Louisville Bar Associations. Chairman Michael W. Alvey Kentucky Workers' Compensation Board Post Office Box 1826 Owensboro, KY Michael W. Alvey serves as Chairman of the Kentucky Workers' Compensation Board, which is the first step in the appellate process in a workers' compensation litigated claim. The three members of the Board are appointed to four-year terms by the Governor, subject to confirmation by the Senate. Board members must possess qualifications of Court of Appeals judges. Chairman Alvey received his B.A. from Western Kentucky University in 1980 and his J.D. from the University of Kentucky College of Law in Following law school, Chairman Alvey practiced primarily defending workers' compensation, federal black lung and personal injury claims. In November 2009, he was appointed to serve as Chairman of the Kentucky Workers' Compensation Board. Chairman Alvey retired from the Kentucky Army National Guard in 2000 where he served nearly twenty-one years as an armor officer, and is a graduate of the Armor Officer Basic Course and Armor Officer Advanced Course. He was recently appointed to the board of directors for the National Association of Workers' Compensation Judiciary (NAWCJ) and is a member of the Kentucky Bar Association and its Workers' Compensation Law Section. iv

9 WORKERS' COMPENSATION IN KENTUCKY Commissioner Dwight T. Lovan HISTORY Compensation acts are of modern origin, the first two being enacted in 1911 in Wisconsin and New Jersey. Kentucky s first Act was passed in 1914 but ruled unconstitutional in Kentucky State Journal Co. v. Workmen s Compensation Board, 170 S.W. 437 (Ky. 1914). The Act was again adopted in 1916 including provisions that made it voluntary for the employee so that it would pass constitutional muster. See Greene v. Caldwell, 186 S.W. 648 (Ky. 1916). Prior to that time, an employee injured on the job generally was required to resort to tort litigation. This involved the necessity of establishing negligence on the part of the employer and demonstrating the employee had in no way contributed to the accident. Individuals who were injured or killed in a work accident where negligence could not be found were without a source of compensation and they and their family relied upon either public or private largesse. With the advent of the industrial revolution, more and more injured workers found themselves unable to support themselves or their families as a result of the inability to compete for employment. Many state legislatures determined that this created a real public problem and, therefore, concluded it was in the public interest to place the burden for injuries received upon the industry in which they were suffered and not on society as a whole. Robinson vs. Lytle, 124 S.W.2d 78 (Ky. 1939). In order for this goal to be achieved, it was necessary to affect a compromise between the employer and the employee. Additionally, it was recognized that such an approach might avoid the expense, delay and uncertainty of an action at law. Morrison vs. Carbide & Carbon Chemicals Corp., 129 S.W.2d 547 (Ky. 1939). In order to succeed, it was necessary for both employers and employees to surrender some of their rights under common law. The employer relinquished the right to require the employee to show some negligence, to assert certain affirmative defenses, and to be unsecured. The employee gave up the right to seek recompense through a jury trial, regardless of the existence of negligence or the level of negligence involved, the right to seek redress against a co-employee, and the right to a full measure of damages that existed within the tort system. Ultimately, workers' compensation laws gave rights to contracting employers that are not given by the common law or other statutory enactments, and, as a condition of such rights, there are certain requirements that must be observed. The courts also enforce statutory obligations which include, insofar as practicable, the elimination of the common law action for personal injury growing out of industrial accidents. Reliford vs. Eastern Coal Corp., 149 F.Supp. 778 (E.D.Ky. 1957), affirmed 260 F.2d 447, cert. denied 359 U.S As such, workers' compensation acts were able to effectuate a beneficent purpose which included substituting more certain remedies of compensation for previously existing common law rights. Staton vs, Reynolds Metal Co., 58 F.Supp. 657 (W.D.Ky. 1945). Workers' compensation acts at their core constituted some of the very earliest pieces of social legislation and tort reform in this country. Today, the essential underlying purposes remain the same. In the early years of workers' compensation in Kentucky, these acts were purely voluntary. In order to be covered by workers' compensation, an employee had to sign a compensation register indicating acceptance of the provisions of the Workers' Compensation Act. Many of the cases discussing the early provisions of the Act came 1

10 about when an employer attempted to show in a civil case the employee had accepted the provisions of the Act, and was barred from receiving civil damages. Failure to secure voluntary acceptance precluded the employer from raising some affirmative defenses in a civil action. Further, the exposure economically was significantly less under the provisions of the Workers' Compensation Act than in an unsuccessful civil action. Today KRS (2) provides that if an employer fails to offer security for workers' compensation benefits, certain defenses will not be available in a civil case. During these early years of workers' compensation, income benefits were generally low. Of course, wages were fairly low at that time also. The Act provided for an artificial cap on the number of weeks an individual would receive either permanent partial or permanent total benefits. From the inception of workers' compensation laws in Kentucky until January 1973, there was a fixed cap on medical expenses. In the latter years, however, this cap could be exceeded in the event the employee made a motion to reopen and established that greater medical expenses were necessary. Beginning around 1955, workers' compensation laws became less voluntary and more mandatory. Most acts were written in such a way that an employer was deemed to have accepted the provisions of the workers' compensation law and an employee was required to affirmatively reject the Act rather than accept it. As late as 1975, the Kentucky Supreme Court in Davis vs. Turner, 519 S.W.2d 820 (Ky. 1975) mandated that except for employers of exempt employees, there was no option on the part of the employer not to come under the law. In fact, employers who might otherwise have exempt employees under the Act can, if they so desire, operate under the Act by securing workers' compensation insurance and appropriately notifying the Department of Workers Claims. An employee may continue to reject the Act by executing a standard form available through the Department of Workers Claims and by filing that rejection with the Department. The courts have generally taken a dim view of voluntary rejections, particularly in circumstances where it appears the employer has made rejection of the Act an obligation of employment. In late 1972, a special session of the Legislature occurred. That Act, which became effective January 1, 1973, constituted a substantial change in the workers' compensation law. All disability benefits were paid for life. Claims for coal workers' pneumoconiosis became more significant and substantial. Coincidentally, the wages of coal miners were on a significant upturn as was the awarding of Federal black lung benefits. Weekly benefits continued to be fairly low and were less than the state's average weekly wage. As the 1973 Act continued to be in use, significant attorney fees were generated, particularly in the coal fields of Eastern and Western Kentucky. In fact, in the early to mid 1970s, the Louisville Courier Journal published a list of attorneys who secured a million dollars in attorney fees as a result of black lung awards, although attorney fees were limited to a maximum of $6,500 per claim brought forth two decisions that played a significant role in a change in the workers' compensation law by the 1980 Legislature. The first was Apache Coal Co. vs. Fuller, 541 S.W.2d 933 (Ky. 1976), in which the Supreme Court interpreted certain provisions of the Act as mandating a minimum weekly benefit whether it be a permanent total or permanent partial award and regardless of the individual's average weekly wage. The other decision was rendered in C. E. Pennington Co., Inc. vs. Winburn, 537 S.W.2d 167 (Ky. 1976), in which the Court concluded the percentage of disability was multiplied by an individual's average weekly wage before it was reduced to the maximum benefit. 2

11 Because of increasing wages being paid to employees, it was conceivable that a high wage earner would receive the statutory maximum benefits for life even though their actual disability might be 50 to 60 percent. In essence, individuals were permitted to return to work without fear of reopening by the employer while continuing to receive maximum benefits under the Act. During the regular Legislative session in 1980, significant modifications occurred. First, permanent partial disability benefits were limited to 425 weeks with any temporary total disability benefits reducing the number of weeks payable for permanent partial. By the same token, however, the weekly benefits under the Act received by the employee were increased. If an individual received a total occupational disability, it would be for that individual's life. The requirement for minimum weekly benefits ceased to exist for permanent partial disability claims but continued for total claims. Additionally, the Legislature directed that workers' compensation benefits would terminate when an individual began to draw old age Social Security or became eligible for full old age Social Security benefits. Although the courts had, on a number of occasions, differentiated between "impairment" and "disability," the Act for the first time made reference to the use of the American Medical Association Guidelines to Functional Impairment. A statutory provision addressing permanent partial disability directed that disability be determined in accordance with the latest edition of the American Medical Association Guidelines to Functional Impairment or actual occupational disability. The Court in Cook vs. Paducah Recapping Service, 694 S.W.2d 684 (Ky. 1985), concluded the language used by the Legislature did not mandate a minimum benefit in accordance with the American Medical Association Guidelines to Functional Impairment nor, for that matter, did it establish a maximum. In reality, the AMA Guidelines became merely one of the many factors to be used in determining "disability." The 1982 Legislature made some minor changes to the 1980 Act. They removed the requirement that benefits cease at age sixty-five. They further removed the requirement that weeks of temporary total disability benefits would reduce the number of weeks an individual received the permanent partial disability benefits. And, finally, in an attempt to address the increasing unfunded liability of the Special Fund, changed the manner in which Special Fund payments were made, with the Special Fund paying benefits directly to the injured worker rather than by way of reimbursement of the employer after the employer had satisfied its liability. It should be noted that prior to 1973, if an individual were found to have coal workers' pneumoconiosis and it resulted from multiple exposures, the entire liability was paid by the Special Fund. From 1973 to 1980, if an individual had multiple exposures, although it was apportioned 25 percent to the employer and 75 percent to the Special Fund, as it is now, the Special Fund would pay the entire amount with reimbursement being sought from the employer. If it were a single employment or exposure, the employer who was liable for 60 percent of the benefits would pay with reimbursement from the Fund. In October 1987, a special session of the Legislature took place. It was primarily called to address concerns of the unfunded liability existing on the part of the Special Fund. What began as legislation attempting to deal with the unfunded liability issue resulted in a major change relating to the operation of the Kentucky workers' compensation system. Throughout the prior history of the Kentucky Workers' Compensation Act, there existed a part-time Workers' Compensation Board, which consisted of five members, who would 3

12 meet in Frankfort one day a week and render decisions. Effective October 26, 1987, the Workers' Compensation Board became a full time three member board which had appellate responsibilities and thus replaced the circuit courts as the first step in the appeals process. Ten Administrative Law Judge positions were created. The Administrative Law Judges were assigned the responsibility of fact finding, replacing what had been the "Old" Workers' Compensation Board. In addition, black lung benefits were modified to create what is frequently referred to as a tier system. Four options were available in a black lung claim, the first being dismissal; the second, retraining incentive benefits; the third, 75 percent occupational disability; and the last, a total occupational disability. The apportionment scheme between the employer and the Special Fund remained the same except for retraining incentive benefits, which became the sole responsibility of the employer with whom the claimant was last exposed. At the time, a little perceived procedural change in the black lung statute allowed for the filing of a black lung claim by an individual who continued to work. In the previous laws, the courts had interpreted the statute on occupational disease to mean that if an individual continued working, and thus continued to be exposed to the hazards of the disease, he or she could not file a claim. While initially this was of little import, a 1991 decision of the Kentucky Supreme Court in Eastern Coal Corp. vs Blankenship, 813 S.W.2d 808 (Ky. 1991), stated that in order to receive retraining incentive benefits actual retraining was unnecessary. Following that decision, the number of retraining incentive benefits claims proliferated. Other major changes included limiting apportionment as between an employer and the Special Fund on low back claims and heart attack claims such that the Special Fund could be liable for no more than 50 percent of the disability benefits. In 1990, the Legislature added five additional Administrative Law Judges, presumably upon the recognition that the work load and the volume of cases coupled with the travel in handling cases was simply too much for ten ALJs to withstand. During the regular Legislative session of 1994, workers compensation was again revisited. The result was House Bill 928. This statutory change again addressed the impact of an individual reaching age sixty-five and presumably becoming eligible for normal Social Security benefits. It created what became known as the tier down provisions. Beginning at age sixty-five, an individual who has received an award based upon an injury prior to his sixty-fifth birthday would experience a 10 percent reduction in those benefits each year through age seventy. Changes relating to coal workers' pneumoconiosis also were made. The process for pursuing and receiving retraining incentive benefits was significantly modified. If an individual continued to work in the mining industry in the severance and processing of coal, then any benefits awarded for Category 1 coal workers' pneumoconiosis without impairment were paid only to a bona fide training program approved by the Commissioner of the Department of Workers Claims. Additionally, for claims seeking Tier 2, Tier 3 or Tier 4 benefits, the worker may not even file such a claim until he leaves the mining industry. The definition of injury was modified to the extent that an individual who experienced a psychological problem allegedly related to work, absent a concurring physical injury, was no longer covered by the Kentucky Workers' Compensation Act. Individuals who sustained a work-related injury and returned to work at the same or greater wage could only receive an award of permanent partial disability of one to two times functional impairment as determined by the latest edition of the American Medical 4

13 Association Guidelines to Functional Impairment. Individuals who receive greater than a 50 percent occupational disability would receive benefits for 520 weeks rather than 425 weeks. Workers found to be totally disabled received lifetime benefits. Continuing to address the potential "unfunded" liability of the Special Fund, the Legislature mandated that in all injury claims, the Special Fund, regardless of the evidence, could be responsible for no more than one-half of any award. This apportionment scheme did not apply to coal workers' pneumoconiosis. In an attempt to address the acceleration of liability on the part of the Special Fund in the event of a unilateral settlement by the employer, the Legislature provided in KRS (8) that the Special Fund would pay its liability over the entire period of payments. This change was in response to Newberg ys. Chumley, 824 S.W.2d 413 (Ky. 1992), which directed pre-1994 unilateral settlements to accelerate both the weeks and dollars to be paid by the Special Fund. A dollar "cap" was reinstituted on attorney fees. An attorney could receive no more than $15,000 as an attorney fee in a workers' compensation claim regardless of the total amount recovered on behalf of the worker. There were also modifications in the medical arena. The Legislature authorized the inception and use of managed care for workers' compensation injuries. These managed care programs reduced the worker's ability to totally and solely control his or her choice of physicians. Within the managed care program, if used by an employer, the employee is obligated to have a gate-keeper physician and may only change that physician once, referrals to specialists, absent emergency situations, remain in the program with one right to a second opinion. In addition to managed care, the Commissioner of the Department of Workers Claims was authorized to establish practice parameters for physicians in the treatment of workers' compensation injuries, some of which have been adopted. (See Acute Back Problems in Adults). Insurers were leaving Kentucky and the costs of securing coverage through the assigned risk pool continued to rise. A competitive state fund was created as a quasigovernmental entity, Kentucky Employers Mutual Insurance. This entity, as of September 1, 1995, completely replaced the pool. In addition to ensuring all employers would have the ability to secure coverage for work-related injuries, the competitive state fund was authorized to seek out and write competitive policies. KEMI, as it is now known, was essentially directed to be self-supporting within three years. Its initial funding mechanism permitted it to secure a "loan" from other governmental organizations. There were also "minor" revisions to the administrative process. The Commissioner of the Department of Workers Claims assumed responsibility for all administrative functions of the Department. That individual ceased to be selected by the Board and became an independent operative upon appointment by the Governor. The Workers' Compensation Board ceased its involvement in the day-to-day operation of the Department of Workers Claims and its function became purely appellate. Further, the Workers' Compensation Board was mandated to render opinions on appeal within sixty days of the filing of the last brief. One new Administrative Law Judge position was created for the purpose of having a Chief Administrative Law Judge. This individual, in conjunction with the Commissioner of the Department of Workers Claims, had general oversight of the remaining fifteen ALJs. She was assigned no regular pre-hearing and hearing dockets but was available to assist other ALJs in the event of crisis situations. 5

14 ALJs were mandated to render an opinion in a case before them within sixty days of the hearing unless the parties agreed otherwise. Another extraordinary session of the legislature (special session) occurred in December What many believed was to be a further discussion to resolve the unfunded liability of the Special Fund and the role coal claims played in that liability turned into some of the most sweeping changes to the Workers Compensation Act since House Bill 1 which became effective December 12, 1996, altered not only the provisions of the Act, but the thinking processes of those involved with workers compensation in Kentucky. Permanent partial disability became a mathematical function of an impairment rating determined in accordance with the latest edition of the AMA Guides to the Evaluation of Permanent Impairment. Permanent total disablitiy was presumed to have become more limited with a modification of its definition in KRS (11). However, subsequent court decisions taught us otherwise. See Ira A. Watson Dept. Store v. Hamilton., 34 S.W.3d 48 (Ky. 2000). The Special Fund ceased to be an entity that shared liability in all new claims. Black lung claims were altered with entitlement to benefits being limited in most situations unless there was evidence of breathing impairment. Physicians at the two University Medical Schools were mandated to offer true independent medical exams. The impact of the change to black lung benefit entitlement is evidenced by the reduction of black lung claims filed in 1993 of almost 7,000 to an average of 150 or fewer from 1997 to the present. A new adjudicatory step, arbitrators, was created, and another, the Workers Compensation Board, was allowed to sunset. However, after four years of this new adjudicatory step, the regular session of the 2000 Legislature reversed this action. The arbitration process ceased to exist and the plan for the Workers Compensation Board to cease its existence as of July 1, 2000, found it reinstated effective July 15, The 2000 legislative session also resulted in modifications to the 1996 enactment focusing primarily on the refinement of the determination of benefits in traumatic injuries. After 2000, the word multipliers became a repetitive part of permanent partial disability language. This gave rise to Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003) and its progeny. The legislature attempted to address concerns about the substantial reduction in black lung awards in It gave us the consensus process and B reader panels until December 22, 2011, when the Supreme Court gave us Vision Mining v. Gardner, 2011 WL (Ky. Dec. 22, 2011), designated to be published, holding this process to be unconstitutional. We have had no major legislative changes to the Kentucky Workers Compensation Act since 2002 or some might say since 1996, but as can be seen by the Vision Mining decision and decisions of the Supreme Court almost on a monthly basis, the history of Kentucky Workers Compensation is constantly changing. 6

15 HOW TO PRACTICE A WORKERS COMPENSATION CLAIM: AN OUTLINE OF KENTUCKY S WORKERS COMPENSATION SYSTEM & PROCEDURE J. Landon Overfield, CALJ I. INTRODUCTION This outline is intended to provide some thoughts which will enable young lawyers to practice workers compensation claims in an effective manner. Workers compensation practice, in past decades, has been seen as a lower echelon practice which did not require a considerable amount of expertise. This is no longer the case. Workers compensation has now become highly specialized. As hundreds of thousands of dollars may rest on the results of these claims, the practitioner must stay abreast of the rapidly changing statutory and regulatory authority governing the practice. One of the most expedient methods by which to stay current with the rapidly changing law is by way of the Internet. You can log on to the Department of Workers Claims (DWC) web site at and the Kentucky Bar Association (KBA) web site at Both sites offer free access to Kentucky statutes and administrative regulations. The DWC website also offers access to forms and other information useful in the practice of workers compensation claims. Through the KBA site, access can be gained to Casemaker Legal Research, a website offering FREE access to the research of Kentucky case law. This outline will begin where the case begins, with the initial decision concerning representation of the client. The outline contains no discussion regarding coal workers pneumoconiosis claims, as this practice is HIGHLY specialized, has changed significantly in the last couple of years and is currently in a state of flux. II. SHOULD YOU TAKE THIS CASE? A. Defendant The query concerning representing a client is less burdensome to the counsel for defendant. The only real issue is the past experience with the client (if self-insured) or the client s carrier or third-party administrator (who is probably paying you), whether or not this client, carrier or third party administrator (TPA) offers suitable remuneration for the attorneys representation, and whether counsel can maintain a working relationship with the client and/or carrier/tpa. B. Plaintiff Such is not the case with the practitioner who represents workers compensation plaintiffs. The success of such a practitioner s business is often directly related to the screening of prospective clients. Good cases tend to foster good results, and the opposite is also true. (Ancient Native 7

16 American proverb: The success of the rain dance has a lot to do with timing. ) At the 2011 Mid-Winter Meeting & CLE Seminar sponsored by the Kentucky Bar Association s Workers Compensation Law Section, a very effective presentation was given by Christopher P. Evensen, Esq., entitled: Effectively Handling Cases from a Plaintiff s Perspective. Mr. Evensen noted that, over the years, he had developed a red flag checklist that he uses in deciding whether or not to agree to represent a perspective plaintiff. With his permission, I am sharing that portion of his outline, verbatim, with you: 1. Parent or spouse makes the phone call/does all the talking for the claimant. Who s really calling the shots? 2. They just fired their last lawyer because He wasn't doing anything. If they had a problem with another lawyer, you may be the next. 3. I'm not looking to get any money out of this. Tells me their main interest may be how much money they can get out of it. 4. Prior claims/prior lawyers: More than three prior claims makes one wonder if the claimant is unlucky or has other motives. Also, have different lawyers handled the prior claims -- why not go back to the same lawyer? Look at (2). 5. Out of state claimant. It's not their fault they no longer live here, but it does make things more difficult for scheduling IMEs, deposition and appointments with the claimant. 6. Language barrier. Why did I take French in high school? There are an increasing number of non- English speaking workers in Kentucky, the majority of which are Spanish-speaking. If you cannot communicate directly with your client, I believe you are at a disadvantage. Do they have a translator (friend or family member) who can accompany them to all meetings, deposition, IMEs, etc.? What about when a quick phone call to the client is necessary? This can become an issue. 7. Low-value claim: Can the cost necessary to obtain the proof necessary to win the case be justified? 8. Various other flags. 8

17 Mr. Evensen s theory is that the presence of two of his red flags raises serious concern with him as to whether or not to take the case. Having practiced workers compensation claims for both plaintiffs and defendants for twenty-one years, and having adjudicated workers compensation cases for more than sixteen years, I think he has a very valid point. Prior to entering into a contractual relationship with a prospective client, the practitioner and/or his or her paralegal should conduct an in-depth interview with the prospective client and obtain authorization for a records check. After the initial interview, the practitioner should use an Open Records Request to inquire of the DWC concerning previous work-related injuries and previous filings of workers compensation claims. A check of the medical facilities in the prospective client s home area should also be conducted to determine the prospective client s medical history in general and, in particular, to check for previous injuries or illnesses which may have an effect on the prospects of recovery in the matter for which representation has been sought. If Plaintiff s story and history check out, an attorney/client contract should be drafted and executed. Keep in mind that 803 KAR 25:010 4(7) requires that a motion for attorney s fee be accompanied by a photocopy of the signed and dated contingency fee contract. After entering into the contractual arrangement for representation, get the claim ready for presentation. This will require investigation to make sure all of the facts are as Plaintiff has related them. The practitioner should also gather all medical records and have a medical report, preferably from the treating physician, which gives an opinion concerning the work-related injury, a specific diagnosis, the causation of the impaired condition, a functional impairment rating, if Plaintiff is at maximum medical improvement, and an opinion concerning restrictions on Plaintiff s physical activities. In short, have the claim ready for litigation before the initiating pleadings are ever filed. It is also important that you know your Plaintiff and know how he or she will appear under direct and cross-examination. After gathering all of the necessary information, discuss with your client his or her expectations of recovery. At this point, the practitioner should educate the client as to the intricacies and realities of workers compensation. Together, the practitioner and the client should arrive at a reasonable expectation for recovery. At that time, make a demand upon the Defendant and/or its representative for settlement. Make sure the settlement demand is a reasonable one and one that is supported by the medical evidence which you will introduce if the claim is not settled. In this settlement demand, set a time limit for a response and inform the Defendant that, if a response is not received on a certain date, the claim will be filed immediately after the passage of that date. Your negotiations should be done in a manner which is ethical, professional and reasonable. Keep in mind that the fact that the Defendant/adjuster does not agree with your position does not mean that the person is stupid, evil or both. Reasonable minds can often disagree as to the value of a claim. While the claim is in negotiation, get the claim ready for filing. You must know what forms to use, and the forms you use should be the latest available. Again, these forms can be obtained from the DWC website. Also make sure that you are basing your settlement demand and the gathering of information for filing a 9

18 claim on the most recent statutory and regulatory material. Both the statutes and the regulations change frequently. These changes should be anticipated and the most up-to-date material should be used. Have your initiating pleadings ready for filing in the event the settlement negotiations break down. It would also be helpful to anticipate any unusual legal questions and have research performed which will provide you with authority for the position you are advocating. Having all the proper material at your fingertips will allow you to negotiate from a position of strength. If your reasonable settlement demand is ignored, or you have reached a negotiating impasse, file your claim and litigate from a position of strength. III. PRELIMINARY PLEADINGS. A. Initiating Pleadings, Plaintiff Procedures for filing claims for injuries, occupational diseases and hearing loss are set forth in 803 KAR 25:010 3, 5, 6 and 7. To initiate an injury claim, the claimant must file a Form 101 (Application for Resolution of Injury Claim, Addendum 1), a Form 104 (Work History, Addendum 2), a Form 105 (Medical History, Addendum 3), and a Form 106 (Medical Release, Addendum 4). Note that the work history should date back twenty years. The medical history should date back fifteen years and should include all treatment, not just treatment related to the injury. In addition to these forms, the claimant must attach one medical report describing the injury that is the basis of the claim. If a psychological condition is alleged, a medical report establishing the presence of a mental impairment or disorder must also be filed. The Form 101, like the other forms, calls for specific information. The Form 101, and all other initiating pleadings, should be completed entirely with well-worded responses where information is requested. The Form 101 is, in most instances, the first piece of information reviewed by the Administrative Law Judge (ALJ) to whom the claim is assigned. The manner in which the Form 101 is completed gives an indication as to the skill and competence of the attorney completing the Form 101. Also, a full disclosure on the Form 101 and the accompanying forms (Work History, Medical History, etc.) sets the tone for the manner in which the claim will be practiced. It also gives the ALJ a good overview of the Plaintiff and the Plaintiff s work and medical history. To initiate an occupational disease claim, the claimant must file a Form 102 (Application for Resolution of Occupational Disease Claim, Addendum 5) and Forms 104, 105 and 106. Additionally, the claimant must file one medical report supporting the existence of the occupational disease. To initiate a hearing loss claim, the claimant must file a Form 103 (Application for Resolution of Hearing Loss Claim, Addendum 6) and Forms 104, 105 and 106. Additionally, the claimant must file one medical report describing the hearing loss. As with any injury claim, if a 10

19 psychological condition is alleged, a separate report establishing that condition must also be filed. Medical reports filed with applications shall be considered as evidence. 803 KAR 25:010 8(4). You don t have to give notice that you intend the report to be evidence or re-file the report. It is evidence. Medical reports filed with applications may consist of handwritten notes of a treating physician but should be legible. The medical report should describe the subject injury, give a diagnosis and an opinion as to the cause of the condition, and its relation to the claimed injury. B. Response by Defendant Once the claim has been initiated by the filing of a Form 101, 102 or 103, the ball is in the Defendant s court for a period of time. Although the Plaintiff still has the burden of proof, the scheduling order calls for immediate action by the Defendant. Once counsel obtains the file from the carrier/tpa/defendant, immediate attention should be given to the medical reports in the defense file. If there has been no independent medical evaluation preformed for the defense side, one should be scheduled IMMEDIATELY. Close attention should be given to the medical reports/records filed with the Form 101, 102 or 103. Those documents are now automatically in evidence [803 KAR 23:010E 8(4)] as long as they are proper. If the Plaintiff has attached objectionable evidence to the Forms 101, 102 or 103, objections should be filed with or before the filing of the Form 111. It would also be wise to schedule an immediate conference with the employer representatives to determine whether or not the claim is legitimate and to determine what facts are available to defend the claim. If would also be advisable to immediately contact the office of counsel for Plaintiff to schedule a deposition and also to request a settlement demand. If the claim can be settled quickly and expediently, you will be elevated to a place of high esteem with your client who will then refer all workers compensation matters to your office. Once a claim has been initiated and a scheduling order issued, the Defendant has forty-five days from the date of the scheduling order in which to file a Form 111, Notice of Claim Denial (Addendum 7 for injury and hearing loss claims and Addendum 8 for occupational disease claims). 803 KAR 25:010 5(2). If no Form 111 is filed, all of the allegations contained in the Forms 101, 102 or 103 shall be deemed admitted. This is a default judgment. If a claim is being denied in whole or in part, the Defendant shall state in detail the basis for the denial. As with the Plaintiff s completion of a Form 101, the Defendant s completion of the Form 111 says a great deal about how the claim will be practiced. Properly completing the Form 111 and providing all of the information requested is a good first step in an adequate defense of the claim. The defendant should also attach a job description to the Form 111 or, at some point in the proceedings, file a job description. The issue of whether a claimant is entitled to enhanced benefits under KRS (1)(c)1 may be determined by the job duties performed by the claimant at the time of injury. 11

20 Although workers compensation litigation, as a general rule, is much less adversarial than other forms of practice, a complete failure to file a Form 111 will not be excused. If the Form 111 is not filed, the defendant/employer has admitted all the allegations contained in the initiating pleading such as the occurrence of a work related injury, Plaintiff s statement concerning notice, etc. While a defendant/employer may be given an extension of time within which to file a Form 111, if there are reasonable grounds for excuse, if one has not been filed at the time of the benefit review conference, the Plaintiff will have what amounts to a default judgment. As with default judgments, there still must be proof of damages so to speak. Plaintiff must still submit medical evidence concerning causation, a functional impairment rating, physical capacity, etc. If a Defendant plans to assert a Special Defense, it must do so within forty-five days from the date of the scheduling order or within ten days after the defense is discovered. The Special Defenses are listed in 803 KAR 25:010 5(2)(d). Defenses which must be raised in a special answer are the unreasonable failure to follow medical advice, failure to comply with safety laws, false statement on an employment application, voluntary rejection of the Workers Compensation Act, voluntary intoxication or self-infliction of injury, refusal to accept rehabilitation services or the running of periods of limitations or repose. If not timely raised, Special Defenses are waived. If no special answer has been properly filed, the Defendant may not be allowed the inclusion of such a contested issue in the benefit review conference order and memorandum. Defense counsel should also conduct investigations concerning the plaintiff, the alleged injury and plaintiff s medical condition and medical care. An immediate Open Records Request should be initiated to inquire of the DWC concerning previous work-related injuries and previous filings of workers compensation claims by the plaintiff. Defense counsel and/or his or her paralegal should conduct in-depth interviews with the appropriate employer representatives and any witnesses to the alleged injury. The plaintiff s medical authorization, attached to the initiating form, can be used for a check of the medical facilities in the plaintiff's home area. Such an investigation should be conducted to determine the plaintiff s medical history in general and, in particular, to check for previous injuries or illnesses which may have an effect on the claim. IV. PRESENTATION OF EVIDENCE. A. READ and come to KNOW KRS and 803 KAR 25:010 8, 9, 10, 11, 14, 15 and 17. Evidence from vocational experts is now admissible in the same manner as evidence from medical experts. 803 KAR 25: The proofing order and proof time are scheduled pursuant to 8. The scheduling order provides sixty days for all parties to present proof, thirty days for the Defendant, and fifteen days for rebuttal for Plaintiff. 12

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