342.316 Liability of employer and previous employers for occupational disease --
2,867 words·~13 min read·
/ky/342-316A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Claims procedure -- Administrative regulations -- Time limitations on claims --
Determination of liable employer -- Audit -- Amount of compensation -- Effect
of concluded coal workers' pneumoconiosis claim.
(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.
(2)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.
(3)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
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.
(b)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. If it is shown that
the spirometric testing is not valid due to inadequate cooperation or poor
effort on the part of the claimant, the claimant's right to take or prosecute
any proceedings under this chapter shall be suspended until the refusal
or obstruction ceases. No compensation shall be payable for the period
during which the refusal or obstruction continues.
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. 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.
b. The commissioner shall assign the claim to an administrative law
judge and shall promptly refer the employee to a duly qualified "B"
reader physician who is licensed in the Commonwealth and is a
board-certified pulmonary specialist as set forth pursuant to KRS
342.315 and 342.794(1). 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.
c. The commissioner shall develop a procedure to annually audit the
performance of physicians and facilities that are selected to
perform examinations pursuant to this section. The audit shall
include an evaluation of the physician and facility with respect to
the timeliness and completeness of the reports and the frequency at
which the physician's classification of an X-ray differs from those
of the other physicians of that X-ray. The commissioner shall
remove a physician or facility from selection consideration if the
physician or facility consistently renders incomplete or untimely
reports or if the physician's interpretations of X-rays are not in
conformity with the readings of other physicians of record at least
fifty percent (50%) of the time. The report required under this
subdivision shall be provided to the Interim Joint Committee on
Economic Development and Workforce Investment on or before
July 1, 2019, and on or before July 1 of each year thereafter.
d. In coal workers' pneumoconiosis claims, if the physician selected
by the commissioner interprets an X-ray as positive for
complicated coal workers' pneumoconiosis, the commissioner
shall refer the employee to the facility at which the claimant was
previously evaluated for a computerized tomography scan in order
to verify the findings. The computerized tomography scan shall be
interpreted by the facility and a report shall be filed with the
commissioner. The employer, insurer, or payment obligor shall pay
the cost of the examination pursuant to the medical fee schedule.
The administrative law judge may rely upon the findings in the
report in accepting or rejecting ILO radiographic evidence of the
disease required under KRS 342.732 for benefit determination.
e. 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.
f. 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.
g. 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.
h. Within thirty
(30)days of the receipt of the statement for the
evaluation, the employer, insurer, or payment obligor shall pay the
cost of the examination. Upon notice from the commissioner that
an evaluation has been scheduled, the employer, insurer, or
payment obligor shall forward the expenses of travel necessary to
attend the evaluation at the state employee reimbursement rates to
the employee within seven
(7)days. However, if the employee has
alleged a pulmonary dysfunction but has not filed spirometric
evidence as required by paragraph
(a)of this subsection at the time
the evaluation is scheduled by the commissioner, the employee
will be responsible for fifty percent (50%) of the cost of the
evaluation.
5. The procedure for appeal from a determination of an administrative law
judge shall be as set forth in KRS 342.285.
(a)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, asbestos-related disease, or a type of cancer specified in
KRS 61.315(11)(b), a claim must be filed within twenty
(20)years from the
last injurious exposure to the occupational hazard.
(b)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 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.
(5)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).
(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.
(7)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.
(8)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.
(9)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. 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.
(10)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)For claims filed on or before June 30, 2017, 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)Income benefits for coal-related occupational pneumoconiosis for claims filed
after June 30, 2017, shall be paid by the employer in whose employment the
employee was last exposed to the hazards of coal workers' pneumoconiosis.
(c)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.
(12)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.