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342.316 Liability of employer and previous employers for occupational
disease -- Claims procedure -- Time limitations on claims -- Determination
of liable employer -- Effect of concluded coal workers' pneumoconiosis
claim -- Applicability of consensus procedure.
(1)
(2)
(3)
(a)
The employer liable for compensation for occupational disease shall be
the employer in whose employment the employee was last exposed to the
hazard of the occupational disease. During any period in which this
section is applicable to a coal mine, an operator who acquired it or
substantially all of its assets from a person who was its operator on and
after January 1, 1973, shall be liable for, and secure the payment of, the
benefits which would have been payable by the prior operator under this
section with respect to miners previously employed in the mine if it had
not been acquired by such later operator. At the same time, however, this
subsection does not relieve the prior operator of any liability under this
section. Also, it does not affect whatever rights the later operator might
have against the prior operator.
(b) The time of the beginning of compensation payments shall be the date of
the employee's last injurious exposure to the cause of the disease, or the
date of actual disability, whichever is later.
The procedure with respect to the giving of notice and determination of claims
in occupational disease cases and the compensation and medical benefits
payable for disability or death due to the disease shall be the same as in cases
of accidental injury or death under the general provisions of this chapter,
except that notice of claim shall be given to the employer as soon as
practicable after the employee first experiences a distinct manifestation of an
occupational disease in the form of symptoms reasonably sufficient to apprise
the employee that he or she has contracted the disease, or a diagnosis of the
disease is first communicated to him or her, whichever shall first occur.
The procedure for filing occupational disease claims shall be as follows:
(a) The application for resolution of claim shall set forth the complete work
history of the employee with a concise description of injurious exposure to
a specific occupational disease, together with the name and addresses of
the employer or employers with the approximate dates of employment.
The application shall also include at least one (1) written medical report
supporting his or her claim. This medical report shall be made on the
basis of clinical or X-ray examination performed in accordance with
accepted medical standards and shall contain full and complete
statements of all examinations performed and the results thereof. The
report shall be made by a duly-licensed physician. The commissioner
shall promulgate administrative regulations which prescribe the format of
the medical report required by this section and the manner in which the
report shall be completed.
1.
For coal-related occupational pneumoconiosis claims, each clinical
examination shall include a chest X-ray interpretation by a National
Institute of Occupational Safety and Health (NIOSH) certified "B"
reader. The chest X-ray upon which the report is made shall be filed
with the application as well as spirometric tests when pulmonary
(b)
dysfunction is alleged.
2.
For other compensable occupational pneumoconiosis claims, each
clinical examination shall include a chest X-ray examination and
appropriate pulmonary function tests.
To be admissible, medical evidence offered in any proceeding under this
chapter for determining a claim for occupational pneumoconiosis resulting
from exposure to coal dust shall comply with accepted medical standards
as follows:
1.
Chest X-rays shall be of acceptable quality with respect to exposure
and development and shall be indelibly labeled with the date of the
X-ray and the name and Social Security number of the claimant.
Physicians' reports of X-ray interpretations shall: identify the
claimant by name and Social Security number; include the date of
the X-ray and the date of the report; classify the X-ray interpretation
using the latest ILO Classification and be accompanied by a
completed copy of the latest ILO Classification report. Only
interpretations by National Institute of Occupational Safety and
Health (NIOSH) certified "B" readers shall be admissible.
2.
Spirometric testing shall be conducted in accordance with the
standards recommended in the "Guides to the Evaluation of
Permanent Impairment" and the 1978 ATS epidemiology
standardization project with the exception that the predicted normal
values for lung function shall not be adjusted based upon the race of
the subject. The FVC or the FEV1 values shall represent the largest
of such values obtained from three (3) acceptable forced expiratory
volume maneuvers as corrected to BTPS (body temperature,
ambient pressure and saturated with water vapor at these
conditions) and the variance between the two (2) largest acceptable
FVC values shall be either less than five percent (5%) of the largest
FVC value or less than one hundred (100) milliliters, whichever is
greater. The variance between the two (2) largest acceptable FEV1
values shall be either less than five percent (5%) of the largest FEV1
value or less than one hundred (100) milliliters, whichever is greater.
Reports of spirometric testing shall include a description by the
physician of the procedures utilized in conducting such spirometric
testing and a copy of the spirometric chart and tracings from which
spirometric values submitted as evidence were taken.
3.
The commissioner shall promulgate administrative regulations
pursuant to KRS Chapter 13A as necessary to effectuate the
purposes of this section. The commissioner shall periodically review
the applicability of the spirometric test values contained in the
"Guides to the Evaluation of Permanent Impairment" and may by
administrative regulation substitute other spirometric test values
which are found to be more closely representative of the normal
pulmonary function of the coal mining population.
4.
The procedure for determination of occupational disease claims
shall be as follows:
a.
b.
c.
d.
e.
Immediately upon receipt of an application for resolution of
claim, the commissioner shall notify the responsible employer
and all other interested parties and shall furnish them with a full
and complete copy of the application.
The commissioner shall assign the claim to an administrative
law judge and, except for coal workers' pneumoconiosis
claims, shall promptly refer the employee to such physician or
medical facility as the commissioner may select for
examination. The report from this examination shall be
provided to all parties of record. The employee shall not be
referred by the commissioner for examination within two (2)
years following any prior referral for examination for the same
disease.
Except for coal workers' pneumoconiosis claims, within
forty-five (45) days following the notice of filing an application
for resolution of claim, the employer or carrier shall notify the
commissioner and all parties of record of its acceptance or
denial of the claim. A denial shall be in writing and shall state
the specific basis for the denial. In coal workers'
pneumoconiosis claims, the employer's notice of claim denial
or acceptance shall be filed within thirty (30) days of the
issuance by the commissioner of the notice of the consensus
reading unless the consensus is that the miner has not
developed coal workers' pneumoconiosis category 1/0 or
greater. In the event the consensus procedure is exhausted
without consensus being established, the employer's notice of
claim denial or acceptance shall be filed within thirty (30) days
of the commissioner notification to the administrative law judge
that consensus has not been reached.
Within forty-five (45) days of assignment of a coal workers'
pneumoconiosis claim to an administrative law judge, the
employer shall cause the employee to be examined by a
physician of the employer's choice and shall provide to all other
parties and file with the commissioner the X-ray interpretation
by a "B" reader. The examination of the employee shall include
spirometric testing if pulmonary dysfunction is alleged by the
employee in the application for resolution of a claim. The
commissioner
shall
determine
whether
the
X-ray
interpretations filed by the parties are in consensus.
If the readings are not in consensus, the commissioner shall
forward both films, masking information identifying the facility
where the X-ray was obtained and the referring physician,
consecutively to three (3) "B" readers selected randomly from a
list maintained by the commissioner for interpretation. Each "B"
reader shall select the highest quality film and report only the
interpretation of that film. The commissioner shall determine if
two (2) of the X-ray interpretations filed by the three (3) "B"
readers selected randomly are in consensus. If consensus is
(4)
(a)
(b)
reached, the commissioner shall forward copies of the report to
all parties as well as notice of the consensus reading which
shall be considered as evidence. If consensus is not reached,
the administrative law judge shall decide the claim on the
evidence submitted.
f.
"Consensus" is reached between two (2) chest X-ray
interpreters when their classifications meet one (1) of the
following criteria: each finds either category A, B, or C
progressive massive fibrosis; or findings with regard to simple
pneumoconiosis are both in the same major category and
within one (1) minor category (ILO category twelve (12) point
scale) of each other.
g.
The administrative law judge shall conduct such proceedings
as are necessary to resolve the claim and shall have authority
to grant or deny any relief, including interlocutory relief, to
order additional proof, to conduct a benefit review conference,
or to take such other action as may be appropriate to resolve
the claim.
h.
Unless a voluntary settlement is reached by the parties, or the
parties agree otherwise, the administrative law judge shall
issue a written determination within sixty (60) days following a
hearing. The written determination shall address all contested
issues and shall be enforceable under KRS 342.305.
5.
The procedure for appeal from a determination of an administrative
law judge shall be as set forth in KRS 342.285.
The right to compensation under this chapter resulting from an
occupational disease shall be forever barred unless a claim is filed with
the commissioner within three (3) years after the last injurious exposure to
the occupational hazard or after the employee first experiences a distinct
manifestation of an occupational disease in the form of symptoms
reasonably sufficient to apprise the employee that he or she has
contracted the disease, whichever shall last occur; and if death results
from the occupational disease within that period, unless a claim therefor
be filed with the commissioner within three (3) years after the death; but
that notice of claim shall be deemed waived in case of disability or death
where the employer, or its insurance carrier, voluntarily makes payment
therefor, or if the incurrence of the disease or the death of the employee
and its cause was known to the employer. However, the right to
compensation for any occupational disease shall be forever barred,
unless a claim is filed with the commissioner within five (5) years from the
last injurious exposure to the occupational hazard, except that, in cases of
radiation disease or asbestos-related disease, a claim must be filed within
twenty (20) years from the last injurious exposure to the occupational
hazard.
Income benefits for the disease of pneumoconiosis resulting from
exposure to coal dust or death therefrom shall not be payable unless the
employee has been exposed to the hazards of such pneumoconiosis in
(5)
(6)
(7)
(8)
(9)
the Commonwealth of Kentucky over a continuous period of not less than
two (2) years during the ten (10) years immediately preceding the date of
his or her last exposure to such hazard, or for any five (5) of the fifteen
(15) years immediately preceding the date of such last exposure.
The amount of compensation payable for disability due to occupational disease
or for death from the disease, and the time and manner of its payment, shall be
as provided for under the general provisions of the Workers' Compensation
Act, but:
(a) In no event shall the payment exceed the amounts that were in effect at
the time of the last injurious exposure;
(b) The time of the beginning of compensation payments shall be the date of
the employee's last injurious exposure to the cause of the disease, or the
date of actual disability, whichever is later; and
(c)
In case of death where the employee has been awarded compensation
or made timely claim within the period provided for in this section, and an
employee has suffered continuous disability to the date of his or her death
occurring at any time within twenty (20) years from the date of disability,
his or her dependents, if any, shall be awarded compensation for his or
her death as provided for under the general provisions of the Workers'
Compensation Act and in this section, except as provided in KRS
342.750(6).
If an autopsy has been performed, no testimony relative thereto shall be
admitted unless the employer or its representative has available findings and
reports of the pathologist or doctor who performed the autopsy examination.
No compensation shall be payable for occupational disease if the employee at
the time of entering the employment of the employer by whom compensation
would otherwise be payable, falsely represented himself or herself, in writing,
as not having been previously disabled, laid-off, or compensated in damages
or otherwise, because of the occupational disease, or failed or omitted truthfully
to state to the best of his or her knowledge, in answer to written inquiry made
by the employer, the place, duration, and nature of previous employment, or, to
the best of his or her knowledge, the previous state of his or her health.
No compensation for death from occupational disease shall be payable to any
person whose relationship to the deceased, which under the provisions of this
chapter would give right to compensation, arose subsequent to the beginning
of the first compensable disability, except only for after-born children of a
marriage existing at the beginning of such disability.
Whenever any claimant misconceives his or her remedy and files an
application for adjustment of claim under the general provisions of this chapter
and it is subsequently discovered, at any time before the final disposition of the
cause, that the claim for injury, disability, or death which was the basis for his
or her application should properly have been made under the provisions of this
section, then the application so filed may be amended in form or substance, or
both, to assert a claim for injury, disability, or death under the provisions of this
section, and it shall be deemed to have been so filed as amended on the date
of the original filing thereof, and compensation may be awarded that is
warranted by the whole evidence pursuant to the provisions of this chapter.
(10)
(11)
(12)
(13)
When amendment of this type is submitted, further or additional evidence may
be heard when deemed necessary. Nothing this section contains shall be
construed to be or permit a waiver of any of the provisions of this chapter with
reference to notice of time for filing of a claim, but notice of filing a claim, if
given or done, shall be deemed to be a notice of filing of a claim under
provisions of this chapter, if given or done within the time required by this
subsection.
When an employee has an occupational disease that is covered by this
chapter, the employer in whose employment he or she was last injuriously
exposed to the hazard of the disease, and the employer's insurance carrier, if
any, at the time of the exposure, shall alone be liable therefor, without right to
contribution from any prior employer or insurance carrier, except as otherwise
provided in this chapter.
(a) Income benefits for coal-related occupational pneumoconiosis shall be
paid fifty percent (50%) by the Kentucky coal workers' pneumoconiosis
fund as established in KRS 342.1242 and fifty percent (50%) by the
employer in whose employment the employee was last exposed to the
hazard of that occupational disease.
(b) Compensation for all other occupational disease shall be paid by the
employer in whose employment the employee was last exposed to the
hazards of the occupational disease.
A concluded claim for benefits by reason of contraction of coal workers'
pneumoconiosis in the severance or processing of coal shall bar any
subsequent claim for benefits by reason of contraction of coal workers'
pneumoconiosis, unless there has occurred in the interim between the
conclusion of the first claim and the filing of the second claim at least two (2)
years of employment wherein the employee was continuously exposed to the
hazards of the disease in the Commonwealth.
For coal-related occupational pneumoconiosis claims, the consensus
procedure shall apply to all claims which have not been assigned to an
administrative law judge prior to July 15, 2002. The consensus classification
shall be presumed to be the correct classification of the employee's condition
unless overcome by clear and convincing evidence. If an administrative law
judge finds that the presumption of correctness of the consensus reading has
been overcome, the reasons shall be specially stated in the administrative law
judge's order.
Effective:July 15, 2010
History: Amended 2010 Ky. Acts ch. 24, sec. 1816, effective July 15, 2010; and
ch. 90, sec. 4, effective July 15, 2010. -- Amended 2002 Ky. Acts ch. 340,
sec. 2, effective July 15, 2002. -- Amended 2000 Ky. Acts ch. 514, sec. 23,
effective July 14, 2000. -- Amended 1996 (1st Extra. Sess.) Ky. Acts ch. 1,
sec. 16, effective December 12, 1996. -- Amended 1996 Ky. Acts ch. 355,
sec. 12, effective July 15, 1996. -- Amended 1994 Ky. Acts ch. 181, Part 15,
sec. 83, effective April 4, 1994. -- Amended 1990 Ky. Acts ch. 99, sec. 2,
effective July 13, 1990. -- Amended 1987 (1st Extra. Sess. Ky. Acts ch. 1,
sec. 41, effective October 26, 1987. -- Amended 1986 Ky. Acts ch. 317, sec. 1,
effective July 15, 1986. -- Amended 1982 Ky. Acts ch. 278, sec. 21, effective
July 15, 1982; and Ky. Acts ch. 426, sec. 1, effective July 15, 1982. -- Amended
1980 Ky. Acts ch. 104, sec. 10, effective July 15, 1980. -- Amended 1976 Ky.
Acts ch. 108, sec. 2. -- Amended 1974 Ky. Acts ch. 177, sec. 1. -- Amended
1972 Ky. Acts ch. 78, sec. 18. -- Amended 1970 Ky. Acts ch. 16, sec. 3. -Amended 1964 Ky. Acts ch. 192, sec. 24. -- Amended 1962 Ky. Acts ch. 276,
sec. 3. -- Amended 1960 Ky. Acts ch. 35, sec. 1; and ch. 147, sec. 16. -Amended 1956 Ky. Acts ch. 77, sec. 12. -- Amended 1948 Ky. Acts ch. 151,
sec. 4. -- Created 1944 Ky. Acts ch. 82, sec. 3.
Legislative Research Commission Note (7/15/2010). This section was amended
by 2010 Ky. Acts chs. 24 and 90, which do not appear to be in conflict and have
been codified together.
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