2014 Kentucky Revised Statutes CHAPTER 342 - WORKERS' COMPENSATION 342.125 Reopening and review of award or order -- Grounds -- Procedures -- Time limitations -- Credit for previously-awarded retraining incentive benefits or income benefits awarded for coal-related pneumoconiosis.
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342.125 Reopening and review of award or order -- Grounds -- Procedures -Time limitations -- Credit for previously-awarded retraining incentive
benefits or income benefits awarded for coal-related pneumoconiosis.
(1)
(2)
(3)
(4)
(5)
Upon motion by any party or upon an administrative law judge's own motion,
an administrative law judge may reopen and review any award or order on any
of the following grounds:
(a) Fraud;
(b) Newly-discovered evidence which could not have been discovered with
the exercise of due diligence;
(c) Mistake; and
(d) Change of disability as shown by objective medical evidence of
worsening or improvement of impairment due to a condition caused by
the injury since the date of the award or order.
No claim which has been previously dismissed or denied on the merits shall be
reopened except upon the grounds set forth in this section.
Except for reopening solely for determination of the compensability of medical
expenses, fraud, or conforming the award as set forth in KRS 342.730(1)(c)2.,
or for reducing a permanent total disability award when an employee returns to
work, or seeking temporary total disability benefits during the period of an
award, no claim shall be reopened more than four (4) years following the date
of the original award or order granting or denying benefits, and no party may
file a motion to reopen within one (1) year of any previous motion to reopen by
the same party.
Reopening and review under this section shall be had upon notice to the
parties and in the same manner as provided for an initial proceeding under this
chapter. Upon reopening, the administrative law judge may end, diminish, or
increase compensation previously awarded, within the maximum and minimum
provided in this chapter, or change or revoke a previous order. The
administrative law judge shall immediately send all parties a copy of the
subsequent order or award. Reopening shall not affect the previous order or
award as to any sums already paid thereunder, and any change in the amount
of compensation shall be ordered only from the date of filing the motion to
reopen. No employer shall suspend benefits during pendency of any reopening
procedures except upon order of the administrative law judge.
(a) Upon the application of the affected employee, and a showing of
progression of his previously-diagnosed occupational pneumoconiosis
resulting from exposure to coal dust and development of respiratory
impairment due to that pneumoconiosis and two (2) additional years of
employment in the Commonwealth wherein the employee was
continuously exposed to the hazards of the disease, the administrative
law judge may review an award or order for benefits attributable to
coal-related pneumoconiosis under KRS 342.732. An application for
review under this subsection shall be made within one (1) year of the date
the employee knew or reasonably should have known that a progression
of his disease and development or progression of respiratory impairment
have occurred. Review under this subsection shall include a review of all
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(7)
(8)
evidence admitted in all prior proceedings.
(b) Benefits awarded as a result of a review under this subsection shall be
reduced by the amount of retraining incentive benefits or income benefits
previously awarded under KRS 342.732. The amount to be deducted
shall be subtracted from the total amount awarded, and the remaining
amount shall be divided by the number of weeks, for which the award was
made, to arrive at the weekly benefit amount which shall be apportioned
in accordance with the provisions of KRS 342.316.
In a reopening or review proceeding where there has been additional
permanent partial disability awarded, the increase shall not extend the original
period, unless the combined prior disability and increased disability exceeds
fifty percent (50%), but less than one hundred percent (100%), in which event
the awarded period shall not exceed five hundred twenty (520) weeks, from
commencement date of the original disability previously awarded. The law in
effect on the date of the original injury controls the rights of the parties.
Where an agreement has become an award by approval of the administrative
law judge, and a reopening and review of that award is initiated, no statement
contained in the agreement, whether as to jurisdiction, liability of the employer,
nature and extent of disability, or as to any other matter, shall be considered by
the administrative law judge as an admission against the interests of any party.
The parties may raise any issue upon reopening and review of this type of
award which could have been considered upon an original application for
benefits.
The time limitation prescribed in this section shall apply to all claims
irrespective of when they were incurred, or when the award was entered, or the
settlement approved. However, claims decided prior to December 12, 1996,
may be reopened within four (4) years of the award or order or within four (4)
years of December 12, 1996, whichever is later, provided that the exceptions to
reopening established in subsections (1) and (3) of this section shall apply to
these claims as well.
Effective:July 14, 2000
History: Amended 2000 Ky. Acts ch. 514, sec. 7, effective July 14, 2000. -Amended 1996 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 6, effective December 12,
1996. -- Amended 1994 Ky. Acts ch. 181, Part 6, sec. 27, effective April 4, 1994.
-- Amended 1987 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 16, effective October
26, 1987. -- Amended 1980 Ky. Acts ch. 104, sec. 4, effective July 15, 1980. -Amended 1972 Ky. Acts ch. 78, sec. 24. -- Amended 1960 Ky. Acts ch. 147,
sec. 12. -- Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942,
from Ky. Stat. sec. 4902.
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