342.732 Income benefits and retraining incentive benefits for coal workers'
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pneumoconiosis -- Referral to Office of Vocational Rehabilitation --
Administrative regulations -- Online portal.
(1)Notwithstanding any other provision of this chapter, income benefits and
retraining incentive benefits for occupational pneumoconiosis resulting from
exposure to coal dust in the severance or processing of coal shall be paid as
follows:
(a)1. If an employee has a radiographic classification of category 1/0, 1/1
or 1/2, coal workers' pneumoconiosis and spirometric test values of
eighty percent (80%) or more, the employee shall be awarded a one
(1)time only retraining incentive benefit which shall be an amount
equal to sixty-six and two-thirds percent (66-2/3%) of the employee's
average weekly wage as determined by KRS 342.740, but not more
than seventy-five percent (75%) of the state average weekly wage,
payable semimonthly for a period not to exceed one hundred four
(104)weeks, except as provided in subparagraph 3. of this
paragraph.
2. Except as provided in subparagraph 3. of this paragraph, these
benefits shall be paid only while the employee is enrolled and
actively and successfully participating as a full-time student taking
the equivalent of twelve
(12)or more credit hours per week in a
bona fide training or education program that if successfully
completed will qualify the person completing the course for a trade,
occupation, or profession and which program can be completed
within the period benefits are payable under this subsection. The
program must be approved under administrative regulations to be
promulgated by the commissioner. These benefits shall also be paid
to an employee who is a part-time student taking not less than the
equivalent of six
(6)nor more than eleven
(11)credit hours per
week, except that benefits shall be an amount equal to thirty-three
and one-third percent (33-1/3%) of the employee's average weekly
wage as determined by KRS 342.740, but not more than
thirty-seven and one-half percent (37-1/2%) of the state average
weekly wage, payable biweekly for a period not to exceed two
hundred eight
(208)weeks.
3. These benefits shall also be paid biweekly while an employee is
actively and successfully pursuing a High School Equivalency
Diploma in accordance with administrative regulations promulgated
by the commissioner. These benefits shall be paid in the amount of
sixty-six and two-thirds percent (66-2/3%) of the employee's average
weekly wage not to exceed seventy-five percent (75%) of the state
average weekly wage for a maximum period not to exceed
seventeen
(17)weeks. These income benefits shall be in addition to
the maximum amount of retraining incentive benefits payable under
this paragraph.
4. The employer shall also pay, directly to the institution conducting the
training or education program, instruction, tuition, and material costs
not to exceed five thousand dollars ($5,000).
5. The employee shall notify the parties of his or her intention to retrain
within thirty
(30)days after the administrative law judge's order
becomes final. The employee must initiate retraining within three
hundred sixty-five
(365)days of the administrative law judge's final
order. Income benefits payable under subparagraphs 1. and 2. of
this paragraph shall begin no later than thirty
(30)days following
conclusion of income benefits paid under subparagraph 3. if such
benefits were paid.
6. If an employee who is awarded retraining incentive benefits under
this paragraph successfully completes a bona fide training or
education program approved by the commissioner, upon completion
of the training or education program, the employer shall pay to that
employee the sum of five thousand dollars ($5,000) for successful
completion of a program that requires a course of study of not less
than twelve
(12)months nor more than eighteen
(18)months, or the
sum of ten thousand dollars ($10,000) for successful completion of a
program that requires a course of study of more than eighteen
months. This amount shall be in addition to retraining incentive
benefits awarded under this paragraph, and tuition expenses paid by
the employer.
7. An employee who is age fifty-seven
(57)years or older on the date
of last exposure and who is awarded retraining incentive benefits
under subparagraphs 1. to 4. of this paragraph, may elect to receive
in lieu of retraining incentive benefits, an amount equal to sixty-six
and two-thirds percent (66-2/3%) of the employee's average weekly
wage, not to exceed seventy-five percent (75%) of the state average
weekly wage as determined by KRS 342.740 multiplied by the
disability rating of twenty-five percent (25%) for a period not to
exceed four hundred twenty-five
(425)weeks, or until the employee
reaches sixty-five
(65)years of age, whichever occurs first, KRS
342.730(4) notwithstanding.
8. A claim for retraining incentive benefits provided under this section
may be filed, but benefits shall not be payable, while an employee is
employed in the severance or processing of coal as defined in KRS
342.0011(23).
9. If an employer appeals an award of retraining incentive benefits,
upon an employee's motion, an administrative law judge may grant
retraining incentive benefits pending appeal as interlocutory relief.
10. If an employee elects to defer payment of retraining incentive
benefits for a period of retraining longer than three hundred sixty-five
(365)days, benefits otherwise payable shall be reduced
week-for-week for each week retraining benefits are further
deferred;
(b)1. If an employee has a radiographic classification of category 1/0, 1/1,
or 1/2 coal workers' pneumoconiosis and respiratory impairment
evidenced by spirometric test values of fifty-five percent (55%) or
more but less than eighty percent (80%) of the predicted normal
values, or category 2/1, 2/2, or 2/3 coal workers' pneumoconiosis
and spirometric test values of eighty percent (80%) or more of the
predicted normal values, there shall be an irrebuttable presumption
that the employee has a disability rating of twenty-five percent (25%)
resulting from exposure to coal dust, and the employee shall be
awarded an income benefit which shall be an amount equal to
sixty-six and two-thirds percent (66-2/3%) of the employee's average
weekly wage, but not to exceed seventy-five percent (75%) of the
state average weekly wage as determined by KRS 342.740
multiplied by the disability rating of twenty-five percent (25%). The
award shall be payable for a period not to exceed four hundred
twenty-five
(425)weeks.
2. An employee who is awarded benefits under this paragraph may, at
the time of the award or before benefit payments begin, elect to
receive retraining incentive benefits provided under paragraph (a)1.
to 6. of this subsection, in lieu of income benefits awarded under this
paragraph, provided that such option is available one
(1)time only
and is not revocable, and provided that in no event shall income
benefits payable under this paragraph be stacked or added to
retraining incentive income benefits paid or payable under
subparagraphs 1. to 6. of paragraph (a)1. to 6. of this subsection to
extend the period of disability;
(c)If it is determined that an employee has a radiographic classification of
category 1/0, 1/1, or 1/2, and respiratory impairment resulting from
exposure to coal dust as evidenced by spirometric test values of less than
fifty-five percent (55%) of the predicted normal values, or category 2/1,
2/2, or 2/3 coal workers' pneumoconiosis and respiratory impairment
evidenced by spirometric test values of fifty-five percent (55%) or more
but less than eighty percent (80%) of the predicted normal values, or
category 3/2 or 3/3 coal workers' pneumoconiosis and spirometric test
values of eighty percent (80%) or more, there shall be an irrebuttable
presumption that the employee has a disability rating of fifty percent
(50%) resulting from exposure to coal dust, and the employee shall be
awarded an income benefit which shall be an amount equal to sixty-six
and two-thirds percent (66-2/3%) of the employee's average weekly wage
but not to exceed seventy-five percent (75%) of the state average weekly
wage as determined by KRS 342.740 multiplied by the disability rating of
fifty percent (50%). The award shall be payable for a period not to exceed
four hundred twenty-five
(425)weeks;
(d)If it is determined that an employee has a radiographic classification of
category 2/1, 2/2, or 2/3 coal workers' pneumoconiosis, based on the
latest ILO International Classification of Radiographics, and respiratory
impairment as evidenced by spirometric test values of less than fifty-five
percent (55%) of the predicted normal values or category 3/2 or 3/3
pneumoconiosis and respiratory impairment evidenced by spirometric test
values of fifty-five percent (55%) or more but less than eighty percent
(80%) of the predicted normal values, there shall be an irrebuttable
presumption that the employee has a seventy-five percent (75%) disability
rating resulting from exposure to coal dust and the employee shall be
awarded income benefits which shall be equal to sixty-six and two-thirds
percent (66-2/3%) of the employee's average weekly wage but not to
exceed seventy-five percent (75%) of the state average weekly wage as
determined by KRS 342.740 multiplied by the disability rating of
seventy-five percent (75%). The award shall be payable for a period not
to exceed five hundred twenty
(520)weeks. Income benefits awarded
under this paragraph shall be payable to the employee during the
disability; and
(e)If it is determined that an employee has radiographic classification of 3/2
or 3/3 occupational pneumoconiosis and respiratory impairment
evidenced by spirometric test values of less than fifty-five percent (55%)
of the predicted normal values, or complicated pneumoconiosis (large
opacities category A, B, or C progressive massive fibrosis), there shall be
an irrebuttable presumption that the employee is totally disabled resulting
from exposure to coal dust, and the employee shall be awarded income
benefits equal to sixty-six and two-thirds percent (66-2/3%) of the
employee's average weekly wage but not more than one hundred percent
(100%) of the state average weekly wage and not less than twenty
percent (20%) of the average weekly wage of the state as determined by
KRS 342.740. Income benefits awarded under this paragraph shall be
payable to the employee during such disability.
(2)The presence of respiratory impairment resulting from exposure to coal dust
shall be established by using the largest forced vital capacity
(FVC)value or
the largest forced expiratory volume in one second
(FEV1)value determined
from the totality of all such spirometric testing performed in compliance with
accepted medical standards.
(3)When valid spirometric tests are not provided and a physician certifies to the
administrative law judge that spirometric testing is not medically indicated
because of the permanent physical condition of the employee, the
administrative law judge shall make his or her decision on the basis of
evidence admitted which establishes the existence of a diagnosis of
occupational pneumoconiosis and respiratory impairment due to the
occupational pneumoconiosis. The evidence submitted by the employee shall
include one
(1)or more arterial blood gas studies performed in accordance with
accepted medical standards. Income benefits shall not be awarded in the
absence of valid spirometric tests if the claimant's PO2 arterial blood gas value
is equal to or higher than one
(1)standard deviation from the normal value
obtained by the formula (103.5 - 0.42X), where X equals the claimant's age at
the time of the arterial blood gas study.
(4)Upon request, the commissioner shall refer an employee who has been
awarded retraining incentive benefits under subsection (1)(a) of this section to
the Office of Vocational Rehabilitation for evaluation and assessment of the
training, education, or other services necessary to prepare the employee for a
trade, occupation, or profession that will return the employee to remunerative
employment, or services necessary and appropriate to prepare and enable the
employee to successfully complete a bona fide training or education program
approved by the commissioner. The commissioner shall contract with the Office
of Vocational Rehabilitation to provide vocational rehabilitation or education
services commensurate with the skill levels and abilities of the employee.
Services provided under this subsection shall be funded by the coal workers'
pneumoconiosis fund, KRS 342. 1242 notwithstanding, for claims filed on or
before June 30, 2017, and by the employer for claims filed after June 30, 2017.
(5)The commissioner shall promulgate administrative regulations sufficient to
effectuate the provisions relating to retraining incentive benefits provided under
subsection (1)(a) of this section. The administrative regulations shall:
(a)Create an online portal through which employees shall select a facility or
institution to provide their retraining. This portal shall list bona fide training
or education programs. These programs shall include postsecondary
programs registered with the Higher Education Assistance Authority, and
will qualify the employee for a trade, occupation, or profession. The
programs listed shall be capable of completion within the period benefits
are payable under subsection (1)(a) of this section;
(b)Establish requirements for approval and certification of a bona fide
training or education program;
(c)Provide that funds paid to the training or education program by the
employer as required under subsection (1)(a)4. of this section shall be
applied only to instruction, tuition, material costs, and any fees necessary
for the completion of the program;
(d)Establish requirements for successful participation in and completion of
an approved and certified bona fide training or education program, and
eligibility standards that must be satisfied to receive sums to be paid by
the employer pursuant to subsection (1)(a)6. of this section; and
(e)Establish attendance, performance and progress standards, and
reporting requirements in consultation with the Office of Adult Education
within the Department of Workforce Development in the Education and
Labor Cabinet as conditions that must be satisfied to receive retraining
incentive income benefits pursuant to subsection (1)(a)3. of this section.
(6)In no event shall income benefits awarded under this section be stacked or
added to income benefits awarded under KRS 342.730 to extend the period of
disability and in no event shall income or retraining incentive benefits be paid to
the employee while the employee is working in the mining industry in the
severance or processing of coal as defined in KRS 342.0011(23)(a).