Tom's Desk by Thomas Ferreri

Committed to offering updates and opinions in the world of Kentucky Workers’ Compensation, Tom Ferreri’s 40+ years of experiences has much insight to share with what is happening today.  

THE SUPREME COURT NEEDS TO REVIEW PRIOR ACTIVE DISABILITY, HOW IT SHOULD BE APPLIED, AND WHO HAS THE BURDEN OF PROOF

September 15, 2017

In recent months we have noticed an increase or upswing in the number of cases coming from the Appellate Tribunals (Workers’ Compensation Board, Court of Appeals, Supreme Court) that are dealing and/or wrestling with the issues of prior impairment and/or prior disability and whether there should be an exclusion due to it.
First let’s review some terms.
The AMA Guides define impairment as “A loss of use, or derangement of any body part, organ system, or organ function.”
Disability is defined as “An alteration of an individual’s capacity to meet personal, social, or occupational demands because of an impairment.”
The physician determines the impairment. An ALJ picks the impairment rating he chooses, which in turn has a statutory factor resulting in a disability rating. The ALJ then applies the appropriate multiplier to award PPD, or to award PTD.
The primary/leading case we have is v Finley v. DBM Technologies, 217 S.W. 3d 261 (Ky. App. 2007) a Court of Appeals (Not Supreme Court) case, whose holding appears simple enough: “To be characterized as active, an underlying pre-existing condition must be symptomatic and impairment ratable pursuant to the AMA Guidelines immediately prior to the occurrence of the work-related injury. Moreover, the burden of proving the existence of a pre-existing condition falls upon the employer”. The Court then cites Wolf Creek Colliers v. Crum, 673 S.W. 2d 735, 736 (Ky. App.1984)
But wait. Is that what Crum really states? We think not. Crum reaffirms that the claimant bears the burden of proof and risk of persuasion. This, of course, includes the burden of proving the cause of the disability. Crum goes further and says the same burden applies to the employer as to issues
upon which the employer bears the burden of proof, e.g., an “affirmative special defense”. The problem is, that neither then nor now, have the statutes, regulations, or case law ever included “prior active disability” as an affirmative defense, nor should they. Finley, relying on an incorrect interpretation of Crum, now shifts the burden of proof on causation from the Plaintiff to the Defendant.
Let’s look a little closer. Finley, in its summation, states a pre-existing condition that is both asymptomatic AND (Emphasis mine) produces no impairment prior to the work-related injury constitutes a pre-existing dormant condition. Note this is conjunctive.  Thus, if the condition is ratable it is not dormant.  If not dormant it must be active. How could one conclude otherwise?
On the other hand it also states that to be considered an “active” condition, a condition must be both symptomatic AND (Emphasis mine) impairment ratable immediately prior to the occurrence of the work-related injury.
Consequently, there is a communication disconnect that is both confusing and confounding.  The ALJs and the Board have been interpreting Finley to determine what is an active condition (to the detriment of employers) but have ignored the definition given by Finley on what is a dormant condition.  By following the path of using the “active condition” definition and placing the burden of proof on the employer, it becomes difficult if not impossible to convince the fact finder that the condition is symptomatic, if the employee testifies that he had no problems prior to the work related event. 
What results is the real probability of a windfall, or double recovery, as the employee who received benefits for a previous work-related injury has the percentage for that disability added to the disability for the new injury rather than having the previous percentage excluded.
It is for these reasons that an opinion from the Supreme Court must be sought to clarify who has the burden of proof, and, that proving a ratable impairment that preexisted is sufficient to obtain an exclusion.  Therefore, look for a good case with the right facts to pursue this argument as bad facts produce bad law!  
We will be discussing this in more depth at our Annual Christmas seminar on December 7th.  Make sure you sign up now for a spot


BREAKING NEWS

August 25, 2017

Continuing our promise to keep you up-to-date on all of the latest breaking news and decisions in Workers’ Compensation, we report to you today that the Supreme Court of Kentucky rendered its decision in Steel Creations v. Injured Workers’ Pharmacy (IWP), TO BE PUBLISHED, in the long awaited decision concerning pharmaceutical pricing. For your convenience, we attach a copy of the entire decision.
The Supreme Court has determined that the ALJ properly identified IWP as a “medical provider”, and further correctly interpreted the “pharmacy fee schedule”. It went on, however, to state that the ALJ must make a determination regarding the actual average wholesale acquisition price paid by IWP (the “pharmacy”). This must be done on a case-by-case basis, and will force IWP to release what it has claimed from Day One to be proprietary information. 
The end result will be, we believe, a plethora of information to be filed by IWP, and resulting evidence then to be filed by the employer should it choose to challenge IWP’s calculations.
Our prediction is that this case will result in some form of settlement with IWP which will relieve them of the necessity to release their “proprietary” information, and, result in a fair dollar amount to be paid by insurers/employers.
We’ll keep you updated.


BREAKING NEWS

August 11, 2017

As always, Ferreri Partners strives to bring you current news and information concerning developments in Kentucky Workers’ Compensation law.
Doctors Hospital of Augusta, LLC, has filed a nine count complaint in the United States District Court, Eastern District of Kentucky, challenging the constitutionality of, inter alia, KRS 342.020 and KRS 342.035; in short, the application of the medical fee schedules as they pertain to out-of-state medical providers.
This case could have a significant impact on carriers in paying out-of-state providers which we often see. This is particularly applicable in areas of the state near state lines when emergency medical services may be provided more swiftly, and in some circumstances, more adequately, by the out-of-state provider.
We will continue to monitor this and keep you apprised.


Radiculopathy Under the Guides

July 21, 2017

This month we thought we would discuss radiculopathy under the AMA Guides as we continue to keep you updated and informed about important issues facing adjusters and attorneys in the ever evolving world of workers’ compensation.
Radiculopathy is defined is found on page 382 of the Guides, in the explanation of factors to be considered in ratings using the DRE model:
“Radiculopathy for the purposes of the Guides is defined as significant alteration in the function of a nerve root or nerve roots and is usually caused by pressure on one or several nerve roots. The diagnosis requires a dermatomal distribution of pain, numbness, and/or paresthesias in a dermatomal distribution. (A dermatome is an area of skin supplied by sensory neurons that arise from a spinal nerve. Symptoms that follow a dermatome, like a pain or rash, may indicate a pathology that involves the related nerve root. To see the dermatomal distribution, see Figures 15-1 and 15-2 as found on page 377.) A root tension sign is usually positive. The diagnosis of a herniated disc must be substantiated by an appropriate finding on an imaging study. The presence of findings on an imaging study in and of itself does not make the diagnosis of radiculopathy. There must also be clinical evidence as described above.”
Under other Definitions of Clinical Findings Used to Place an Individual in a DRE Category, (Box 15-1) Electo-diagnostic verification of radiculopathy states that “Unequivocal electrodiagnostic of acute nerve root pathology includes the presence of multiple positive sharp waves or fibrillation potentials in muscles innervated by one nerve root.”
Electro-diagnostic testing commonly uses two tests:
Electromyography (EMG), which records and analyzes the electrical activity in the muscles.
Nerve Conduction Studies (NCS), often done with the EMG to determine if a nerve is functioning normally.
So you may ask, why is all of this important?
In most cases, using the definitions provided in Box 15-1, found on page 382 of the Guides the physician can assign an individual to DRE Category I, II, or III. Box 15-1 is titled “Definitions of Clinical Findings Used to Place an Individual in a DRE Category.” Importantly, it lists OBJECTIVE findings to be used, such as: muscle spasm, muscle guarding, asymmetry of spinal motion, non-verifiable radicular root pain, reflexes, weakness and loss of sensation, atrophy, radiculopathy, electro-diagnostic verification of radiculopathy, alteration of motion segment integrity, cauda equina syndrome, and urodynamic tests.
Using DRE Categories, an individual in category I (0%) has only SUBJECTIVE findings. In category II (5%-8%), the individual has objective findings but no radiculopathy or alteration of structural integrity, while in category III (10%-13%), radiculopathy with OBJECTIVE VERIFICATION must be present.
Since an individual is evaluated after having reached MMI, a previous history of objective findings may not define the current, ratable condition but is important in determining the course and whether MMI has been reached. THE IMPAIRMENT RATING IS BASED ON THE CONDITION ONCE MMI IS REACHED, NOT ON PRIOR SYMPTOMS OR SIGNS (My emphasis). See page 383.
“If an individual had a radiculopathy caused by a herniated disk or lateral spinal stenosis that responded to conservative treatment and currently has no radicular symptoms or signs, he or she is placed in category II, since at MMI there is no radiculopathy. Category III is for individuals with a symptomatic radiculopathy, either after medical or surgical treatment, or for individuals who have a history of previous radiculopathy caused by disk herniation or lateral spinal stenosis but have improved or become asymptomatic following surgery.” Page 383.
I hope this has been helpful. It is technical, but straight from the Guides, and hopefully will be useful to you in evaluating claims or deciding whether an IME is necessary or not.
As always, we are here to answer any questions or concerns you may have regarding, or other issues that may arise.
All references above in regard to page numbers, charts and figure are to the AMA Guides Fifth Edition.  


Physician Dispensing of Repackage Drugs: When Do We Rein It In?

June 30, 2017

In our continuing effort to keep you up to date with regards to trends and issues in our area of expertise and practice, Workers’ Compensation Law, we thought it appropriate and timely to discuss with you a disturbing (and expensive) practice we now see in the adjustment, and litigation, of injury and occupational claims.

This is the act of repackaging and dispensing of drugs and medications by Physicians.

The FDA regards repackaging as the act of taking a finished drug product from the container in which it was distributed by the original manufacturer, and, then, placing it into a different container without further manipulation of the drug. If a drug is manipulated in any other way, including if the drug is reconstituted, diluted, mixed, or combined with another ingredient, that act is not considered repackaging. The practice of “physician dispensing” occurs when a doctor distributes repackaged medications directly to patients at the place of service.

The emergence of repackaged drugs has increased the frequency and the difference in price between what the physician and the pharmacy are paid. Studies show that prices paid for physician –dispensed drugs were substantially higher than if the same drugs were dispensed by a retail pharmacy.
A study released in 2013 showed that physician-dispensed drugs were the second largest driver of workers’ compensation prescription drug costs after the use of opioids.

In 2014 there was a public hearing by the DWC, which included a discussion of these issues, at which it was determined that these issues would be more appropriately addressed when there is an update to the pharmacy fee schedule.

The WCB had an opportunity to rule on this matter directly in a recent case, but disposed of the case instead, primarily, on the issue of allowing an employer to select the Claimant’s treating physician.

In that case, the Claimant was being seen for a pain management protocol by a pain clinic in Alabama. That clinic ultimately faced several fraud related charges relative to the dispensing of medications, as well as, billing practices. The medical office refused to release the Claimant’s prescriptions to another pharmacy, and, required all of the Claimant’s prescriptions to be filled by the doctor’s office, which charged exaggerated prices to the employer.

Preserved as an issue for the ALJ’s determination was: “The proper method of determining costs to be paid by the Employer and/or its medical payment obligor for prescriptions.”

The ALJ indicated he was bound by the decision of the Court of Appeals, and the finding in the case of Steel Creations, Et al. vs. Injured Workers’ Pharmacy, 2015-CA-000392 regarding the calculation of the correct pricing of the prescription pharmaceuticals, and thus overruled the Employer. On reconsideration, the ALJ overruled the Employer’s request for a specific ruling as to “what it is requested to pay on the contested bills.”

The WCB, in its opinion, simply stated that since the Claimant was no longer seeing that particular physician or clinic, the issue was moot. The WCB also noted that the ALJ had made no finding that the cost of prescriptions as contested were exorbitant and not in conformity with the formulas set forth in the applicable regulations.

Because the ALJs, DWC and the WCB have not addressed this particular issue directly, we believe now is the time to address repackaging before the issue gets more out of control. We currently are in litigation over the issue of repackaging by physicians, and the exorbitant fees they then charge, without any form of control. We hope to force the issue to a decision by the WCB and/or subsequent appellate courts.
Hopefully the legislature by statute, or the DWC, by regulation, will step to the forefront and rein in this practice.
 


Subrogation and Pain in Kentucky: Is it time for the courts to revisit the issue of Subrogation rights and Pain and Suffering in Kentucky?

June 16, 2017

As we all know, subrogation in Kentucky for Workers’ Compensation is governed by KRS 342.700 which allows recovery of indemnity paid to an injured employee, not to exceed the indemnity paid, less the employee’s legal fees and expenses.

The Kentucky courts have allowed an employee’s entire legal expense be deducted from the employer’s or insurer’s portion of any recovery.

While civil actions in Kentucky allow for the recovery of “pain and suffering”, Kentucky employers have only been allowed recovery from settlement proceeds of indemnity paid out, and the proceeds related to “pain and suffering” have remained exempt from subrogation recovery.

The Courts have held that a workers’ compensation carrier has no right to subrogation for items of damage that are not covered by workers’ compensation, and, because pain and suffering is not duplicative of workers’ compensation benefits, such damages do not represent double recovery and are not subject to subrogation.

It appears that may be a small crack in that armor where employers and their insurers may actually have some rights to recover under “pain.”

The statutes require the use of the 5th edition of the AMA Guides is assessing permanent impairment ratings. Chapter 18 of the Guides allows an evaluator to assign up to 3% impairment when that pain-related impairment affects a ratable condition, either slightly or substantially, and also allows an evaluator to increase a rating under the use of the DRE method of the Guides of up to 3%, without giving the additional 3% a label. These assessments are of course increased even more if the assignment of a higher rating causes the statutory factors to change. (e.g. .65 to .85, .85 to 1.0)

In a civil action settlement, the allocation of damages to “pain and suffering” may further limit a right of recovery. However, when there has been no apportionment in a settlement as between pain and suffering, lost wages, and medical expenses, in some circumstances the ALJ has jurisdiction to resolve subrogation issues, and to determine allocation of damages.

Under any circumstances, we are still left with the wording in the statue “less the employee’s legal fees and expenses”, which unless changed, will continue to hamper recovery by the employer or insurer under KRS 342.700 unless changed by the legislature.

With all this being said, it is our belief that this “crack in the armor”, the allowance of subrogation rights to recover for an element of pain factored into an impairment rating and eventual award, may be enough to challenge the prior findings that pain and suffering is not an element of damages subject to an employer or insurer’s workers’ compensation subrogation rights, and, be ripe for review.


BREAKING NEWS

April 27, 2017

As we have always promised, we will bring you updates on cases and the law as soon as possible. This morning is one of those mornings.
The Kentucky Supreme Court, in a split decision, to be published, has found KRS 342.730 (4) to be UNCONSTITUTIONAL. This statue provides in pertinent part, as follows:

"All income benefits payable to this chapter shall terminate as of the date upon which the employee qualifies for normal old-age Social Security retirement benefits under the United States Social Security Act, 42 U.S.C. secs 301 to 1397f, or two (2) years after the employee's injury or last exposure, whichever last occurs."

The Court relied upon the Equal Protection Clauses of the U.S. and Kentucky Constitutions in finding that employees who qualifies for old age benefits under Social Security were treated differently than teachers who did not qualify for Social Security benefits, and thus had no restrictions on their right to workers' compensation benefits, and thus are treated differently.

The matter was remanded to the ALJ for entry of an opinion and award consistent with the Court's opinion.  

It would appear to us that the Kentucky General Assembly will need to address this issue and to provide an offset provision to worker compensation benefits when Social Security is in play, and to provide the same offset provision to Teacher's Retirement benefits. 

We will provide more thoughts on the impact of this decision in the coming days.


LEGISLATIVE ALERT-house bill 296

March 23, 2017

At Ferreri Partners one of our Pillars is Great Law. In part, that means staying aware of potential legislative changes and mobilizing our stakeholders to take action for the good of employers.  As you may know, House Bill 296 is waiting for further action by the KY Senate Economic Development, Tourism, & Labor committee when they return next week for the last part of the regular session. We feel as though the Senate needs to hear from the workers compensation community on this important issue.

If you also feel this legislation is important, we would encourage you to take a moment and write your Senator. Of course, if you need familiarity with HB296 please click here. The General Assembly returns back to Frankfort on March 28 for "Recess/Work Day" and gavels in on March 29. We are also including an excel list with each Senator's office mailing addresses. If you have any questions or need assistance, please let us know. 


LEGISLATIVE ALERT

February 14, 2017

We would like to update you on the Legislative Research Commission's 6 proposed changes to worker's compensation in bills filled in the House. Click here for a detailed summary of these proposed legislation, including the following:

* HB 296. This is a big one, with several proposed changes that will drastically affect claims handing and values, particularly on medical expenses area. We suggest that you click on the link to the proposed bill to see that proposed changes in full display. Again, please remember that this is proposed legislation.
* HB 223. This change to the law pertains to the rate of interest to be paid on past due benefits. This would apply to all worker's compensation orders entered or settlements approved on or after the effective date of the Act.
* HB 196. This bill is sure to generate some buzz, as it will affect many branches and government departments, as well as employers. It is entitled "AN ACT relating to misclassification of employees in the construction industry; and codifies the definition of "independent contractor versus employee."
* HB 211. This bill would amend KRS 337.010 to remove exemptions in the definition of employee for agricultural workers and domestic service workers. 
* HB 75. This Act adds LAWN SERVICES to the exemptions list to work performed on a private home or on the premises of a business that employs no other workers subject to workers' compensation laws.
* HB 293. This bill deals with changes in the organization of the Labor Cabinet and should generally not have an impact on practitioners.    

 You can find the contact information for all the Kentucky legislators by going to www.lrc.ky.gov and choosing the "Find Your Legislator" feature.


new regulations

November 4,2016

We would like to update you on the new Regulations that have recently gone into effect. These changes are procedural in nature and will affect how current cases are handled moving forward.  Our review includes a complete copy of the new Regulations, and the following attachments:
1.    Regulations, provided by the Department of Workers' Claims through LRC
2.    Section 7 of the Regulations Time Deadlines, recap and summary
3.    Social Security Release
4.    VA Release
5.    New Forms

Click here  to access the new Regulations.


Our take on the Nominating Commission News

May 25,2016

We sent out a news release on May 9 when Governor Bevin retired the sitting ALJ Nominating Commission via Executive Order. You can see that Order here. Last week a group comprised of two labor organizations, one former member of the Nominating Commission and two injured workers responded by filing a Petition for Declaratory Judgment and Writ of Mandamus in Franklin Circuit Court. The Writ, which also served Attorney General Andy Beshear, Commissioner Lovan, Governor Bevin and all new members of the Commission, seeks to stop the Executive Order via injunctive relief. The Motion looks to reestablish the old Nominating Commission or alternatively stop the new Nominating Commission from making recommendations that would fill the current ALJ vacancies. The Governor's decision to not reappoint ALJs Polities, Bolton and Wolff leaves seven ALJ seats vacant.

The primary contention of the Writ is that KRS 12.028, the statute that allows the Governor to issue executive orders between legislation for smoother administration of the executive branch, is unconstitutional. The Petitioners also contend that the Executive Order is not in conformity with KRS 12.028 because it abolished the statute that previously formed the Commission and therefore is not a temporary measure. Finally, the Writ challenges whether KRS 12.028 gives the Governor the power to abolish KRS 342.213.

The full Writ is attached here. We are just wondering what good it will do to reinstate a Commission who only has the authority to make recommendations that need the Governor's approval anyway. Is it the fastest way to get the ALJ seat filled? It is also interesting that the Writ cites the Petitioners are worried about bias in ALJ decision making following the Order. We do think the old system posed this risk with attorneys on the Nominating Commission practicing before ALJ's they had the authority to recommend for reappointment. Also, it is generally accepted that the past Commission had a liberal bias and had been that way for at least 8 years. Anyway, should be interesting to watch.


Supreme Court addresses TTD Again and More News from the Kentucky Legislature

February 26, 2016

Over the past several months, we have seen the Supreme Court of Kentucky address the issue of whether an employee is entitled to TTD benefits after coming back to work with job duties differing from those performed at the time of the injury, in three cases.  First, in Livingood v. Transfreight, LLC, Et al., 467 S.W.3d 249 (Ky. 2015), decided last summer, the Supreme Court refused to award TTD benefits for a period when the claimant had returned to somewhat alternative job duties.  In that published decision, the Court pointed to the fact that the record showed 75% of claimant’s light duties were actions he had been performing before the injury, and that he was earning the same rate of pay during this time.  The Court emphasized that workers who are unable to perform their “customary work” after an injury are not always entitled to TTD benefits and the burden of proof on that issue lies with the claimant.

In October, the Court issued an unpublished Opinion in Zappos.com v. Mull, continuing the ongoing discussion of what “return to employment” means in the context of the statutory definition of temporary total disability.  The claimant returned to light-duty work which entailed some job duties that were a part of her regular work for Zappos.  The Supreme Court found the claimant was not entitled to TTD benefits for the subject period as she had returned to work that was more than minimal work, and in fact, included job duties that were some of the same activities as those she was performing before the injury.  In deciding that the work was not minimal, the Court seemed to concentrate on this fact regarding the job duties but also noted that she was earning the same hourly wage.  The Court did note that TTD benefits should not be awarded to a claimant who chooses not to work for reasons unrelated to her work-related disability.

This past week, the Supreme Court continued its interpretation of the definition of temporary total disability in the case of Trane Commercial Systems v. Tipton.  The most significant portion of this “to be published” Opinion comes near the end when the Court defines customary employment.  The Court stated, “However, it is also not reasonable, and it does not further the purpose for paying income benefits, to pay TTD benefits to an injured employee who has returned to employment simply because the work differs from what she performed at the time of injury.  Therefore, absent extraordinary circumstances, an award of TTD benefits is inappropriate if an injured employee has been released to return to customary employment, i.e. work within her physical restrictions and for which she has the experience, training, and education; and the employee has actually returned to employment.”  This definition of customary employment provided by the Court gives us greater latitude and leverage in making arguments that claimants have reached a level of improvement that would permit a “return to employment.”

In related news, the Kentucky Senate has passed an amended form of Senate Bill 151 providing a credit to employers in these situations when an employee comes back to work on light duty or alternative duty and is awarded TTD benefits.  The Bill creates a new section of KRS 342.730 to read as follows: 

“Income benefits otherwise payable pursuant to this chapter for temporary total
disability during the period the employee has returned in a light duty or other
alternative job position shall be offset by the payment of wages paid to the
employee by his or her employer during the period of light duty work performed.”

The Bill passed in the Senate on 2-19-16 and was sent to the House of Representatives on that same date for further consideration.  We will keep you apprised of the status of this legislation.

In other workers’ compensation related news from the Kentucky General Assembly, Senator Westerfield has introduced Senate Bill 204 which would change the makeup of the Workers’ Compensation Nominating Commission.  The current configuration of two attorneys (one claimants’ attorney and one defense attorney), three members of the political party with the largest number of registered voters, and two members of the political party with the second largest number of registered voters would change to the following makeup:
-    (a) One (1) member from the Kentucky Coal Association;
-    (b) One (1) member from the Kentucky Chamber of Commerce;
-    (c) One (1) member from the Kentucky Association of Manufacturers;
-    (d) One (1) member from the Kentucky Chapter of National Federation of Independent Businesses;
-    (e) One (1) member from the Kentucky Justice Association;
-    (f) One (1) member from the Kentucky Employee Safety Association;
-    (g) One (1) at-large member chosen from the general public;

We will keep you apprised on the status of this proposed legislation and all workers’ compensation related legislation in the Kentucky General Assembly.


Legislative action alert- action needed

February, 2016

Bills introduced in Kentucky House and Senate would allow TTD benefits to be offset by wages paid for light duty work, obviating the effect of negative precedent set by Kentucky court decisions
A bill introduced in the Kentucky House of Representatives on January 28, 2016 and an identical bill introduced in the Kentucky Senate on February 3, 2016 would give employers a credit for wages paid to an employee returning to light duty or alternative work during a period of temporary total disability (TTD).   The credit would be used to offset TTD benefits payable during that same period.
The effect of these bills would be to obviate the unfortunate precedent now in place in Kentucky as established by Kentucky’s highest court.  The current state of the law in Kentucky allows a claimant to receive TTD benefits even if he or she has returned to work if the Administrative Law Judge feels the work the claimant has returned to is not “customary” for the claimant.  Central Kentucky Steel v. Wise, 19 S.W.3d 657, 659 (Ky. 2000).  
House Bill 311, introduced by Representative Bart Rowland of Tompkinsville, and Senate Bill 151, introduced by Senator Stephen West of Paris, would eliminate a claimant’s ability to both earn wages and receive TTD benefits, as long as the wages the claimant earns in the light duty or alternative work are at the TTD rate or higher, as the wages would offset the TTD benefits on a dollar-for-dollar basis, thus preventing a double recovery.  If the wages do not rise to the level of the TTD rate, the employee would presumably receive the difference in TTD benefits if the ALJ finds the returned to work is not customary for the employee.
The language in House Bill 311 and Senate Bill 151 is identical.  Both bills would create a new subsection of KRS 342.730 to read as follows:
All income benefits otherwise payable pursuant to this chapter for temporary total disability shall be offset by the payments of any wages to an employee by his or her employer in consideration of work performed by an employee that has returned to work in a light duty or other alternative job position during the period of temporary total disability.
These proposed bills would inject fairness back into the system when employers endeavor to get employees back to work by accommodating restrictions.  We encourage all to contact legislators voicing support of this much-needed addition to KRS 342.730.  You can find the contact information for all the Kentucky legislators by going to www.lrc.ky.gov and choosing the “Find Your Legislator” feature.
Proposed House Bill 200 would eliminate current obstacles for employers and carriers seeking subrogation against third parties
Representative Rowland has also introduced House Bill 200, a measure which would greatly benefit Kentucky employers and carriers by expressly adding “medical benefits paid” to the compensation paid by employers and carriers for which recovery may be sought in a civil action against a third party, and more importantly, by eliminating the language “less the employee’s legal fees and expense,” from the subrogation statute, KRS 342.700.  
We say “more importantly” regarding the elimination of the language concerning the subrogation lien being decreased by the employee’s legal fees and expense because it has long been accepted practice for employers and carriers to seek subrogation for medical benefits paid, even though that express language has not been previously included in KRS 342.700.  However, the deletion of the language “less the employee’s legal fees and expense” would be a complete and total change to how subrogation liens are negotiated and satisfied as we would no longer see employers and carriers having their liens greatly diminished, sometimes even entirely abated, by the claimant’s legal fees and expenses in the civil matter coming off the top of the lien.  
This Bill is currently being discussed in committee.  Again, we encourage everyone to contact legislators as outlined above to express support of House Bill 200.

Other proposed legislation affecting workers’ compensation law during this session of the Kentucky General Assembly includes House Bill 209 which would exempt certain church personnel from coverage under the Workers’ Compensation Act and House Bill 56 which would exempt lawn service workers (who are not engaged on a particular job for more than 20 consecutive days) from coverage under the Act.  Those Bills are both in committee.


2015 YEAR IN REVIEW

January, 2016

As 2015 winds down and we look forward with anticipation to the opportunities and challenges of 2016, we offer this look back at some significant cases decided by Kentucky’s Court of Appeals and Supreme Court during this past year.  The first two cases addressed the statute of limitations and the statute of repose respectively regarding reopening of claims.  Other issues addressed in these decisions included the ongoing modification of the parameters of qualification for temporary total disability (TTD) benefits, facts necessary for a claimant to prove entitlement to the 2x enhancement of benefits for cessation of earning an equal or greater average weekly wage, and the end of apportionment of liability between employers in cumulative trauma claims.  Here’s a brief summary of five important decisions impacting Kentucky workers’ compensation law rendered by Kentucky’s two highest Courts over the past year:

Dana Corp. v. Roberts
Hall v. Hospitality Resources, Inc., 276 S.W.3d 775 (Ky. 2008) is the disastrous case decided by the Kentucky Supreme Court several years back that has basically obviated any efforts to limit reopening of claims for change of disability as shown by worsening of impairment from a statute of limitations standpoint as that decision largely nullified the limitations provision the legislature included in KRS 342.125.  In Dana Corp. v. Roberts, the Defendant attempted to distinguish its situation from the facts of the Hall case but the Court did not agree and found that the holding of Hall was controlling.
Despite the legislature’s clear intention of including a limitation on the reopening of claims for an increase in benefits related to a worsening of impairment, the state’s highest Courts have rewritten the law as to the statute of limitations for reopening claims.  A trio of cases—Hall v. Hospitality, Ky., 276 S. W.3d 775, followed by Radco v. Lyons, 295 S.W.3d 75, and finishing dramatically with Dana Corp. v. Roberts, make the practice of reserving future liabilities of certain claims a near impossibility and, in so doing, demonstrate a fundamental lack of understanding of how a trustworthy insurance system works.  That understanding was the motivation of the 1996 legislature, Kentucky’s elected body which rightfully decides the rights and policies of the Workers’ Compensation Act.
    Dana Corp. completely ignores the legislative intent of limiting one of the most significant cost-drivers in the workers’ compensation system prior to 1996.  At that time, several legislative changes were made in the name of workers’ compensation reform to reduce costs so as to allow insurance carriers to write workers’ compensation insurance, thereby offering protection to Kentucky workers.  One such measure of the 1996 legislation was a limitation period on reopened cases to “four (4) years following the date of the original award or order granting or denying benefits.”  Beginning July 14, 2000, there was an exception for TTD benefits in that the four-year limitation would not apply if an individual was seeking TTD benefits during the period of an Award.  
    The deterioration of this practical measure began in Hall.  In Hall, a 4 to 3 Supreme Court majority ruled that if a Motion to Reopen for a worsening of condition was filed six years after an original settlement agreement, an Award can be maintained for permanent total disability benefits.  The Court overcame the clear four-year limitations period by asserting that the Motion for worsening of condition was filed within three years of a previously-filed Motion to Reopen for temporary total disability.  In so doing, the Court set precedent that any Motion to Reopen filed within the original four years following an Award or settlement effectively restarted the limitations period for later Motions.
    Following the Hall decision, the Supreme Court in Radco held that a Motion to Reopen for TTD benefits can be filed at any time during a period of an Award, which includes the time the claimant is entitled to medicals which are awarded “during disability.”  This ruling explicitly used the 2000 amendment (discussed above) to remove the limitations period for TTD.  In my opinion, the Radco decision ignored the substantial and undecided issue of whether the legislature actually considered that the period of an award would include life-long medical benefits, as opposed to simple indemnity benefits.
    Dana Corp. goes one step further by allowing a Motion to Reopen for PPD, TTD, or PTD at any time during the period of an Award, which includes the time the claimant is entitled to medicals (i.e., “during disability”).  In reaching this conclusion the Board used the logic of Radco, even despite the lack of a statutory amendment addressing the extension of PTD or PPD benefits (the Radco court at least could cite a statutory amendment concerning TTD in reaching its decision).  
    Dana Corp. has appealed to the Supreme Court.  If upheld, we believe the effects of the decision will be many, and include:
1.    A flood of requests to reopen long-abandoned claims.  No doubt, the facts in these closed files will not be able to be discovered and it will be difficult to distinguish whether the Plaintiff’s alleged condition worsened because of the injury, the natural aging process, or some subsequent non-work related incident.  Compounding the matter is our suspicion that many of the claimants will be advanced in age, which increases the likelihood of a permanent total disability award.
2.    More contentious medical fee disputes, as extra efforts will be required to explore whether the natural aging process is the cause for a proposed procedure, and not the independent effects of an injury.  Treating doctors will be more motivated to opine that a procedure is needed because of a distant injury in order to receive payment in full without any deductibles. 
3.    A need to increase premiums in order to cover the longer tail on workers’ compensation claims.  Dana Corp. can only be expected to increase reserves on workers’ compensation claims due to the uncertain increase in exposure the decision created, directly thwarting the very goal of the 1996 reform.
4.    An increase in the value and difficulty of obtaining settlement, due to the increased values on waivers of medical benefits and the right to reopen.  This is particularly true on claims of younger workers.
    The Dana Corp. case is an abomination.  It completely ignores our legislature’s intent of placing a limitation period on Motions to Reopen for increased income benefits.  If we can answer any questions regarding the case and its potential effects, or offer advice on reducing the cost it will impose, please don’t hesitate to contact us.

Consol of Kentucky, Inc. v. Goodgame
While the Court of Appeals was eradicating the limitations on reopenings in Dana Corp., the Supreme Court was busy doing away with the statute of repose on cumulative trauma claims in this case. Goodgame began working as a coal miner in 1975.  He began working for Consol as a coal miner in 1992 and to work at one of its mines in Virginia on August 1, 2009 and worked there until January 19, 2010 when he resigned and took early retirement.  He filed his claim on January 17, 2012 alleging cumulative trauma injuries to his “upper and lower extremities, and to (his) entire spine” as a result of performing work as a miner for Consol.  
The claimant testified he performed a variety of jobs requiring demanding physical labor and during his last several years with Consol began to experience spinal pain but did not seek treatment.  He testified that his work in Virginia continued to include physical labor.
In his application, the claimant alleged January 19, 2010, the last date he worked for Consol in Virginia, as the injury date.  He attached the December 21, 2011 medical report of Dr. Robert Hoskins who opined the claimant’s thirty-five years of work in underground mines were the cause of his conditions.  
ALJ Jeanie Owen Miller dismissed the claim finding it barred by the statute of limitations, and finding that Kentucky could not exercise extraterritorial jurisdiction over any injuries sustained in Virginia, though she also found he had not sustained any injuries in Virginia.  Judge Miller found the work performed in Virginia to be substantially different from the work claimant performed in Kentucky.  Additionally, she found there was no evidence of substance the cumulative trauma alleged to have occurred in Kentucky continued after he began working in Virginia, and also that the claimant had failed to prove Virginia didn’t have jurisdiction over any injuries sustained there as Consol had a place of business in Virginia and claimant’s employment was principally localized there when he accepted that position on August 1, 2009.  Judge Miller found that the statute of limitations (though it seems she meant the statute of repose) began to run from the date of the claimant’s last injurious exposure in the state of Kentucky, July 31, 2009.  As the claim was not filed until over two years after that date, Judge Miller dismissed the claim.
The Board vacated and remanded regarding the statute of limitations with instructions to the ALJ to determine when the cumulative trauma injuries became manifest.  The Board affirmed on the extraterritorial jurisdiction issue.  The Court of Appeals affirmed the Board.  Consol appealed to the Supreme Court arguing the claim is time-barred regardless of the manifestation date.  Goodgame cross-appealed, arguing Kentucky has extraterritorial jurisdiction over the claim.
The Supreme Court affirmed the Court of Appeals.  Regarding the jurisdictional issue, the Court simply noted it agreed with the findings of the ALJ, Board and Court of Appeals but noted that the issue didn’t even need to be addressed because the ALJ had found no injuries occurred in Virginia and the claimant had not preserved that issue for appeal.  
Concerning the statute of limitations/statute of repose issue, the Court noted that in Manalapan Mining Co. v. Lunsford, 204 S.W.3d 601,605 (Ky. 2006) the Supreme Court had specifically held that KRS 342.185(1) acts as both a statute of limitations and a statue of repose in cumulative trauma claims.  This was a hearing loss claim in which the claimant was not informed by a medical provider that he suffered from work-related hearing loss until over two years after he’d retired.  The Court ruled the claim was barred because it was not filed within two years of the date of last injurious exposure. However, the Supreme Court noted it now disagrees with the holding in Lunsford that the repose aspect of KRS 342.185(1) is triggered by the date of last exposure concerning cumulative trauma claims.  
The Court’s reasoning is confusing as it stated the primary factor in its decision was a desire to carry out the intent of the legislature.  In this regard the Court noted that in occupational disease claims the date of last exposure triggers both the running of the statute of limitations and the statute of repose.  This is entirely incorrect.  KRS 342.316 (4)(a) prescribes a statute of repose (five years from date of last injurious exposure to occupational hazard) while prescribing a statute of limitations based on the latter of:  three years from date of last injurious exposure or three years from date 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.  So, while in some cases the date of last exposure triggers the running of the statute of limitations in occupational disease cases, in others it is the date the employee first experiences symptoms sufficient to raise awareness of the disease’s presence that triggers the running of the statute of limitations.  The Court’s reasoning is clearly defective.
The Court stated that in order to carry out the legislature’s intent, and to be consistent with the way occupational diseases are handled, the statute of limitations and statute of repose must run from the same date in cumulative trauma claims – the date an employee is informed of a work-related cumulative trauma injury.  
It would have made more sense if the Court had stated KRS 342.185(1) does not contain a repose aspect concerning cumulative trauma injuries.  By stating that the statute of limitations and statute of repose both run from the date an employee is informed he or she has a work-related cumulative trauma injury, the Court seems to ignore the difference between a statute of repose (a statute that bars an action after a prescribed period of time even if the claimant doesn’t yet know of the cause of action) and a statute of limitations (a statute prescribing a period of time in which a claim must be brought after an injury or after a cause of action is apparent).
We expect this decision to open the floodgates on cumulative trauma claims as under this reinterpretation of the law by the Supreme Court, a claimant could not have worked at a company for a decade but find a doctor to opine that he or she is suffering from a work-related cumulative trauma due to the work performed at that company a decade earlier and there is nothing to bar the claim if this is the first time a physician has told claimant their condition is related to that work.  This decision completely alters the landscape regarding cumulative trauma injuries in Kentucky.

Zappos.com v. Mull
The Supreme Court continued the ongoing discussion of what “return to employment” means in the context of the statutory definition of temporary total disability in this case.  The claimant returned to light-duty work which entailed some job duties that were a part of her regular work for Zappos.  However, she eventually quit and testified she had quit because she wanted to spend more time with her family, and not because she couldn’t continue performing the light-duty work.  Nevertheless, the ALJ awarded her TTD benefits from the period from when she quit working until the date he believed she reached maximum medical improvement (MMI) based on the medical evidence.  ALJ Coleman felt the law compelled him to award TTD benefits for this period because the claimant had not reached MMI and had not reached a level of improvement that permitted her to return to her regular and customary employment.
The Board reversed the ALJ and then the Court of Appeals reversed the Board, reinstating the Award of TTD benefits for the subject period.  
The Supreme Court reversed the Court of Appeals finding that the claimant was not entitled to TTD benefits for the subject period as she had in fact returned to work that was more than minimal work, and in fact, included job duties that were some of the same activities as those she was performing before the injury.  In deciding that the work was not minimal, the Court seemed to concentrate on this fact regarding the job duties but also noted that she was earning the same hourly wage.  The Court did note that TTD benefits should not be awarded to a claimant who chooses not to work for reasons unrelated to her work-related disability.

Livingood v. Transfreight, LLC
In this case the Supreme Court greatly limited the reach of Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671 (Ky. 2009).  In that case, the Supreme Court set the precedent that in order for a claimant to receive application of the 2x multiplier to a PPD award due to cessation of earning an equal or greater average weekly wage (AWW), the reason for the cessation had to be related to the subject disabling injury.  The Court also addressed the issue of entitlement to TTD benefits when a claimant has returned to work on light duty.
Livingood had injured his left shoulder at work and had undergone three surgeries.  After returning to work following the third surgery he bumped into a pole on his forklift and was terminated.  The ALJ gave an Award based on 5% whole-person impairment but did not apply the 2x multiplier to the Award, finding the Plaintiff had ceased earning an equal or greater AWW due to his termination which the ALJ found unrelated to the subject work injury.  The ALJ also denied TTD benefits for a period the claimant had returned to work on light duty.
The Plaintiff appealed and both the Board and the Court of Appeals affirmed the ALJ.  However, the Supreme Court reversed on the multiplier issue while affirming on the TTD issue.
The Court disposed of the TTD issue rather quickly pointing to the fact that the record showed 75% of claimant’s light duties were actions he had been performing before the injury, and that he was earning the same rate of pay during this time.  The Court emphasized that workers who are unable to perform their customary work after an injury are not always entitled to TTD benefits and the burden of proof on that issue lies with the claimant.
Regarding the 2x multiplier issue, the Court noted that the facts of this claim were different from the facts of Chrysalis House in that the claimant in that case had ceased earning an equal or greater AWW because he was terminated for stealing from a client of the employer.  Mr. Livingood was terminated for a series of actions culminating in the incident when he hit the pole with the forklift.  
The Court overruled Chrysalis House in that case’s ruling that the cessation of earning an equal or greater AWW has to be related to the work-related disability.  The Court stated that this interpretation of KRS 342.730(1)(c)(2) did not effectuate the legislature’s intent of encouraging continued employment.  However, noting that an unreasonable result would occur if an employee like the one in Chrysalis House was allowed to benefit from his own wrongdoing, the Court established this new interpretation of the statute:
“We hold that KRS 342.730(1)(c)(2) permits a double income benefit during any period that employment at the same or a greater wage ceases ‘for any reason, with or without cause,’ except where the reason is the employee’s conduct is shown to have been an intentional, deliberate action with a reckless disregard of the consequences either to himself or to another.”
The Court found that there was not substantial evidence to show the claimant’s behavior had been of this nature, noting the ALJ had concluded that if not for some prior transgressions, Mr. Livingood’s hitting of the pole with his forklift would not have resulted in his termination.  The Court reversed on the 2x multiplier issue and remanded to the ALJ for further findings of fact regarding a comparison of the pre-injury and post-injury wages so that the proper analysis could be performed regarding whether the claimant had met his burden of proof to show entitlement to the 2x multiplier.

Hale v. CDR Operations, Inc., et al.
The ruling in this case makes pre-employment physicals more important than ever.  Mr. Hale was a bulldozer operator for CDR for only three months.  Before that, he had operated a bulldozer for other companies for nearly thirty years.  Hale alleged cumulative trauma injuries to his back and neck related to his employment at CDR and was awarded a permanent total disability award.  The Board vacated this Award finding that the ALJ had failed to apportion liability based upon the percentage of Hale’s impairment related to his three months of work at CDR.  The Court of Appeals affirmed the Board.  The Supreme Court reversed and reinstated the ALJ’s Award, giving the full extent of liability to CDR.
Regarding the apportionment issue, the Court noted that before December 12, 1996, the Special Fund assumed liability for the percentage of disability not attributed to the work a claimant had performed for the named employer(s).  However, that section of the statute was repealed and KRS 342.120(2) was enacted.  It reads: “The Special Fund shall have no liability upon any claim in which the injury occurred, or for cumulative trauma, the disability became manifest, or, for occupational disease, if the date of injury or last exposure occurred, after December 12, 1996.”
The Court noted that in hearing loss and occupational disease claims, the employer at the time of the last injurious exposure is liable.  The Court held that any apportionment scheme that treats cumulative trauma claimants differently from hearing loss or occupational disease claimants would “in essence create a ‘lesser’ class of claimants.” Justice Barber, writing for the majority, stated, “The employee is entitled to the same amount of compensation whether he worked for one employer or many.  An employee who sustains a harmful change in his human organism due to cumulative trauma over many years working for the same employer is entitled to compensation to the full extent of his resultant disability.  But, someone like Hale would not be fully compensated, simply because he worked for multiple employers.  We can discern no basis for such a distinction.”


Going from Bad to Worse for Employers: New Board Decision Effectively Dismantles the Statute of Limitations for Reopening of an Original Claim

February, 2015

     For this post I would like to address the recent horrific Workers’ Compensation Board opinion in Dana Corporation v. Roberts, a decision in which the Board rewrote the law as to the statute of limitations for reopening claims.  Speaking through Board Member Stivers, the Board has used a trio of cases—Hall v. Hospitality, Ky., 276 S. W.3d 775, followed by Radco v. Lyons, 295 S.W.3d 75, and finishing dramatically with Dana Corp. v. Roberts, which is presently on appeal to the Court of Appeals—to make the practice of reserving future liabilities of certain claims a near impossibility and, in so doing, demonstrating a fundamental lack of understanding of how a trustworthy insurance system works.  That understanding was the motivation of the 1996 legislature, Kentucky’s elected body which rightfully decides the rights and policies of the Workers’ Compensation Act.

    Dana Corp. completely ignores the legislative intent of limiting one of the most significant cost-drivers in the workers’ compensation system prior to 1996.  At that time, several legislative changes were made in the name of workers’ compensation reform to reduce costs so as to allow insurance carriers to write workers’ compensation insurance, thereby offering protection to Kentucky workers.  One such measure of the 1996 legislation was a limitation period on reopened cases to “four (4) years following the date of the original award or order granting or denying benefits.”  Beginning July 14, 2000, there was an exception for TTD benefits in that the four-year limitation would not apply if an individual was seeking TTD benefits during the period of an Award.  

    The deterioration of this practical measure began in Hall.  In Hall, a 4 to 3 Supreme Court majority ruled that if a Motion to Reopen for a worsening of condition was filed six years after an original settlement agreement, an Award can be maintained for permanent total disability benefits.  The Court overcame the clear four-year limitations period by asserting that the Motion for worsening of condition was filed within three years of a previously-filed Motion to Reopen for temporary total disability.  In so doing, the Court set precedent that any Motion to Reopen filed within the original four years following an Award or settlement effectively restarted the limitations period for later Motions.

    Following the Hall decision, the Supreme Court in Radco held that a Motion to Reopen for TTD benefits can be filed at any time during a period of an Award, which includes the time the claimant is entitled to medicals which are awarded “during disability.”  This ruling explicitly used the 2000 amendment (discussed above) to remove the limitations period for TTD.  In my opinion, the Radco decision ignored the substantial and undecided issue of whether the legislature actually considered that the period of an award would include life-long medical benefits, as opposed to simple indemnity benefits.

    Dana Corp. goes one step further by allowing a Motion to Reopen for PPD, TTD, or PTD at any time during the period of an Award, which includes the time the claimant is entitled to medicals (i.e., “during disability”).  In reaching this conclusion the Board used the logic of Radco, even despite the lack of a statutory amendment addressing the extension of PTD or PPD benefits (the Radco court at least could cite a statutory amendment concerning TTD in reaching its decision).  

    Thus, notwithstanding Board Chairman Alvey’s dissent, the case will find its way to the Court of Appeals and Supreme Court to determine if the Board was correct in effectively eliminating the limitations periods for reopening on all classifications of benefits.  If upheld, we believe the effects of the decision will be many, and include:

1.    A flood of requests to reopen long-abandoned claims.  No doubt, the facts in these closed files will not be able to be discovered and it will be difficult to distinguish whether the Plaintiff’s alleged condition worsened because of the injury, the natural aging process, or some subsequent non-work related incident.  Compounding the matter is our suspicion that many of the claimants will be advanced in age, which increases the likelihood of a permanent total disability award.
2.    More contentious medical fee disputes, as extra efforts will be required to explore whether the natural aging process is the cause for a proposed procedure, and not the independent effects of an injury.  Treating doctors will be more motivated to opine that a procedure is needed because of a distant injury in order to receive payment in full without any deductibles. 
3.    A need to increase premiums in order to cover the longer tail on workers’ compensation claims.  Dana Corp. can only be expected to increase reserves on workers’ compensation claims due to the uncertain increase in exposure the decision created, directly thwarting the very goal of the 1996 reform.
4.    An increase in the value and difficulty of obtaining settlement, due to the increased values on waivers of medical benefits and the right to reopen.  This is particularly true on claims of younger workers.

CONCLUSION

    The Dana Corp. case is an abomination.  It completely ignores our legislature’s intent of placing a limitation period on Motions to Reopen for increased income benefits.  If we can answer any questions regarding the case and its potential effects, or offer advice on reducing the cost it will impose, please don’t hesitate to contact us.


Don’t like the law? Pound the facts.

November, 2014

Hello again, and welcome to our firm’s first newsletter. At the “encouragement” of our team, I am stepping into the digital age to offer updates and opinions in the world of Kentucky Workers’ Compensation, which has served as home to the entirety of my professional career. I guess old dogs can learn new tricks, and I am hoping this is a good way to stay in touch with many of my friends. However, if you’re like my wife Carol, who prefers that I keep many of my opinions to myself, you can unsubscribe from these messages at any time using the link below. We’ll be sending this notes about once a quarter.
     For our first entry, I thought it would be worthwhile to spend some time discussing trends and the current state of affairs in workers’ compensation litigation. That is to say, my review of monthly published appellate opinions reflects that we are in one of the most liberal periods that I can recall. From excessive extent and duration findings, to remarkably common application of the 3x multiplier, to a definition of “customary employment” that routinely threatens to extend TTD benefits past an employee’s return to gainful employment; employers seem to be working against a stacked deck. This is not only costly to employers in terms of final awards, but also—and perhaps more importantly—it often hinders achieving reasonable settlement.
     Our team recently had an internal discussion about all of this, and concluded that we would refuse to adopt a victim mindset as a result. In continuing our focus on ways to achieve above average results, we were reminded of the old lawyer adage: “when the law is against you, pound the facts.” (The adage concludes that, when neither the law nor the facts is on your side, “pound the table”— we do that sometimes too.)
     Too often, we review appellate decisions where, in my opinion, the factual setting was not properly developed. I am of course familiar with the shortened proof period and the high caseloads which distinguish our field of law, and am aware of the burden it places on thorough investigation. However, we believe good practice requires that no stone be left unturned in claims of significant exposure. We believe in almost every claim, there is a little white untruth stemming from the personal interest of the claimant or the involvement of a lawyer that has inflated its value. That untruth shows up in a lot of ways: significant purported symptoms which do not correlate with the objective findings, confusing or inconsistent descriptions of an injury, the nature of medical treatment received shortly before an injury, or a faulty use of the AMA Guides, to name only a few.
     We believe it is defense counsel’s job to find any untruths and bring them to the attention of the fact finder through deposition, medical evidence from treating doctors, Guides reviews, and understanding of a claimant’s background. In a system that seems willing to offer the claimant “the benefit of the doubt” on every issue, a heavy dose of doubt is the best remedy. We also believe that in workers’ comp the lack of doubt virtually often ends in a results-oriented opinion from the ALJ, which, as a result, has created some unfriendly law. 
    At Ferreri Partners, we know that aggressive fact development is inseparable from an aggressive defense. To that end, regular (indeed, essential) parts of our practice include:
•    Assuming that the medical history given by a worker is incomplete, unless there is reason to believe otherwise. In order to complete the history, we have developed web-based tools to find previous treaters omitted from the history, and request medical records based on a still-growing database of previous requests and their responses
•    Brief phone calls with a worker’s supervisor (or other work superior), who is nearly always the best source in scoping out red flags, determining the worker’s credibility, and seeking other witnesses to the alleged injury
•    Carefully composing cross-examination strategies in which a proponent (either the worker, his/her IME physician, or his/her treating physician) is put to task to explain red flags which have been ignored
•    Contemplating and exploring the reasons why treatment with a previous physician has ended. Did the physician believe the worker has returned to normal health? Do we have reason to believe the physician declined to assign restrictions or an impairment rating when asked?
    Anyway, hope you don’t mind the soapbox. Best of luck in your advocating for Kentucky employers and we'll talk to you soon.

All my best, 
Tom