Frequently Asked Questions

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  • What If the Company's Doctor Disagrees with Mine about My Impairment Rating?

    It often happens that the doctor employed by the workers compensation insurance company disagrees with the impairment rating assigned for the work injury by the injured worker's doctor. Such a disagreement in a Kentucky workers compensation case is resolved by the ALJ, who acts as the factfinder. A recent case decided by the Kentucky Supreme Court, Toyota Motor Manufacturing v. Prichard, illustrates and helps explain how this works.

    Prichard suffered a neck injury while working on the assembly line at Toyota in March 2005. She was diagnosed with a cervical strain and degenerative disc disease in her neck area. In November 2007, an ALJ found that she had a permanent impairment rating of 8% and awarded permanent partial disability benefits (PPD benefits) on this basis. Prichard's condition worsened, she reopened her Kentucky workers compensation claim, and in September 2011, the ALJ determined that her impairment rating has increased from 8% to 28%. Prichard's condition continued to deteriorate and her doctor concluded in April 2014 that she was no longer physically capable of working in any capacity,  even in a sedentary job. His conclusion would support a finding that Prichard's impairment rating was 100%.

    Toyota offered expert medical testimony from its own doctor, Dr. Timir Banerjee. Dr. Banerjee concluded in testified that Prichard's condition had remained unchanged with an impairment rating of 8% since he first examined her in 2009.

    The ALJ agreed with Prichard and found that she was totally disabled (her impairment rating is 100%) based on the "persuasive, compelling and reliable" medical evidence. Toyota argued to the Kentucky Supreme Court that its doctor, Dr. Banerjee, was right and Prichard's doctor was wrong. That argument went nowhere as the Court explained: "Dr. Banerjee's opposing view constitutes merely a battle of the experts, the resolution of which is properly left to the ALJ as the individual privileged to view first-hand the totality of the evidence and the credibility of the witnesses."

    So the answer is this: where the injured worker's doctor and the doctor hired by the company or by its workers compensation insurance company disagree as to the scope of the permanent impairment created by the work-related injury, it is up to the ALJ to decide which to credit. Only in very, very, very rare circumstances will the ALJ's decision as to this type of fact be overturned on appeal.

    Lexington, Kentucky workers compensation lawyer Robert Abell represents individuals and families on Kentucky workers compensation claim; contact him at 859-254-7076.

  • Can I Reopen My Kentucky Workers Compensation Claim If My Medical Condition Has Worsened?

    The answer is yes. However and as with other legal claims, there is a time limit and other requirements. There is a four-year limitation period to reopen a Kentucky workers compensation claim.

    A case, Toyota Motor Manufacturing v. Prichard, recently decided by the Kentucky Supreme Court provides a good illustration of how and when a Kentucky workers compensation claim may be reopened because of a deteriorating and worsening medical condition.

    The worker, Prichard, suffered a neck injury while working on the assembly line at Toyota on March 16, 2005. She was diagnosed with a cervical strain and degenerative disc disease in her neck area. She filed a Kentucky workers compensation claim on March 14, 2007, and on November 13, 2007, and ALJ found she had a permanent impairment rating of 8% and awarded her permanent partial disability (often referred to as "PPD benefits) benefits corresponding to that impairment rating. Prichard tried to return to work, but her condition worsened and she had cervical fusion surgery performed in August 2008.

    Prichard moved in April 2009, well within the four-year limitation period, to reopen her original 2007 award, because her injuring and resulting impairment had worsened. An ALJ ruled in September 2011 that her impairment rating had increased from 8% to 28%, a ruling that entitled her to a corresponding increase in PPD benefits.

    Prichard's medical condition continued to deteriorate. In April 2014, her doctor concluded that she was unable to perform even sedentary work, something she had previously been thought able to perform. On August 12, 2014, Prichard moved to reopen the 2011 award. This time the ALJ in an opinion and Ward issued May 20, 2015, concluded that as a result of the further deterioration of Prichard's work-related cervical condition, she was totally disabled.

    Toyota appealed and argued that Prichard's right to reopen her Kentucky workers compensation claim was cut off four years after the initial 2007 award. The Kentucky Supreme Court rejected that ruling and reiterated  the rule as follows: when an order granting or denying workers compensation benefits has been entered subsequent to the date of the original award, the four-year limitation period for reopening the claim is calculated from the later date, rather than from the original award.

    There is no limit on the number of times that a Kentucky workers compensation claim may be reopened, but each reopening must occur  within the four-year limitation period of the date that the last order either granting or denying benefits was entered. Obviously, problems of proof – tying the worsening condition to the initial work injury – arise as more and more time passes from the date of the injury.

     

  • When Can a Kentucky Workers Compensation Claim Be Reopened?

    There are a number of circumstances in which they Kentucky workers compensation claim needs to be reopened. The two most common are (1) where the problems caused by the work injury worsen and the injured worker becomes entitled to a greater amount of permanent partial disability (often referred to as PPD benefits); and/or, (2) further medical treatment is necessary to deal with the problems caused by the work injury.

    There are two basic limits and requirements to reopening a Kentucky workers compensation claim. The first is a time limit. A Kentucky workers compensation claim cannot be reopened when more than four years have passed since the last order granting or denying benefits was entered. The second is the requirement of proof or evidence of a greater impairment rating and/or the need for additional medical treatment.

    A case, Toyota Motor Manufacturing v. Prichard, provides a helpful discussion and illustration for when reopening a Kentucky workers compensation claim is necessary. The worker  sustained a neck injury working on the assembly line at Toyota on March 16, 2005. She filed a Kentucky workers compensation claim on March 14, 2007, and later that year, on November 13, 2007, she was awarded permanent partial disability (PPD) benefits based on a permanent impairment rating of 8%. She tried to return to work but encountered continuing and escalating problems. In August 2008, she had cervical fusion surgery.

    Prichard in April 2009 filed to reopen her 2007 award because her injury and the resulting impairment and worsened. More than two years later, in September 2011, an ALJ ruled that her permanent impairment  rating had increased from 8% to 28%, a decision that in turn increase the amount of PPD benefits to which she was entitled.

    Despite the surgery, Prichard's condition continued to deteriorate and her doctor concluded in April 2014 that she was no longer able to perform even sedentary work. A few months later, on August 12, 2014, Prichard sought to reopen  the 2011 award. Notwithstanding testimony from Toyotas medical expert that her condition had not changed since 2009, Prichard was deemed totally disabled by the ALJ in an opinion issued May 20, 2015, because of further deterioration of her work-related cervical  condition injury.

    Toyota appealed and argued, among other things, that Prichard had only four years after the original and the initial Kentucky workers compensation award in 2007. The Kentucky Supreme Court had already rejected this type of argument in a 2008 case and did so again. The court reiterated the rule as follows: when an order granting or denying workers compensation benefits has been entered subsequent to the date of the original award, the four-year limitation period to reopen is calculated from the later date, rather than from the original award. Since Prichard sought in 2014 to reopen the 2011 award, she was within the four-year limitation period.

    Lexington, Kentucky workers compensation lawyer Robert Abell represents individuals and employees in Kentucky workers compensation cases; contact him at 859-254-7076.

     

  • Does Kentucky workers compensation cover an injury sustained in a pre-employment physical?

    The answer is "no," according to the Kentucky Supreme Court's decision in Rahla v. Medical Center

    Here's what happened in this case. Rahla was offered a job by the medical center contingent upon her passing a physical exam and a drug test.  As part of the physical exam, she was required to lift some objects, as lifting was part of her regular job duties.  She claimed for her Kentucky workers compensation claim that she hurt her neck doing this lifting, although she said nothing at the time and in fact passed the physical exam.  But after she worked at the medical center for a number of weeks, Rahla began having problems with her neck, serious problems that required her to miss work and she was eventually terminated as a result of those absences.  

    But the Court ruled that Kentucky workers compensation law does not cover injuries sustained in a pre-employment physical exam, the reason being that it occurs prior to the official start of the employment relationship.  

    Lexington, Kentucky work injury lawyer Robert Abell represents individuals and employees in Kentucky workers compensation cases; contact him at 859-254-7076. 

     

  • What is necessary for a finding of permanent partial disability under Kentucky workers compensation law?

    A finding of permanent partial disability under Kentucky workers compensation law must be supported by evidence of a permanent disability rating, which, in turn, requires a medical expert to determine the injured worker's degree of permanent impairment.  KRS 342.0011(11)(b), (c). What this means is that a medical expert must give evidence establishing the degree of an injured worker's permanent impairment.

    Lexington, Kentucky workers compensation lawyer Robert Abell represents workers and employees in Kentucky workers compensation cases; contact him at 859-254-7076. 

  • When a worker has sustained multiple injuries, should a preexisting impairment be excluded from present impairment when calculating an award?

    Under Kentucky workers compensation law, when a worker has suffered multiple injuries, a preexisting impairment should be excluded when calculating a present award.  See Roberts Brothers Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003). 

    So what does that mean? Suppose a worker suffered a work injury in 1995 and another one in 2010, and the issue is the award of Kentucky workers compensation due because of the 2010 injury.  The ALJ has to determine the worker's overall impairment, then subtract the impairment attributable to the 1995 injury to reach the impairment for the 2010 injury and the award of Kentucky workers compensation benefits due for it.

    Lexington, Kentucky workers compensation lawyer Robert Abell represents workers and employees in Kentucky workers compensation cases; contact him at 859-254-7076.  

  • Is An Injury Sustained in the Parking Lot Covered by Kentucky Workers Compensation?

    The answer, as the Kentucky Supreme Court, recently stated once again is it depends.  This is a case-by-case issue. 

    In Hanik v. Christopher & Banks, the injured employee, Kim Hanik, slipped on "black ice" in the parking lot where she worked. The store where Hanik worked was located in a shopping center that had two lots, a front and a back. The back lot was used mostly by employees of the various stores, although customers could use it.  In reality, customers rarely used the back lot, because it would necessitate a long walk around the buildings, while the employees could enter their stores through their backdoors that faced the back lot.  Nevertheless, the Kentucky Supreme Court by a 4-3 split ruled that the parking lot where Hanik fell was not part of her workplace for purposes of Kentucky workers compensation.

    Under Kentucky workers compensation law there are four factors used to determine whether a parking lot should be considered part of the workplace:

    (1) whether the employer, either directly or indirectly, owns, maintains, or controls the parking facility or a portion thereof;

    (2) whether the employer designated where in the parking facility its employees are to park;

    (3) whether the employee parked in the designated area; and

    (4) whether the employee was taking a reasonable path from his/her car to his/her work station when injured. 

    The workers compensation ALJ will make the fact finding on this, so the evidence at the hearing is critical.

    Lexington, Kentucky workers compensation lawyer Robert Abell represents individuals and employees in claims for Kentucky workers compensation benefits; contact him at 859-254-7076. 

  • How many days of work do I have to miss because of a Kentucky work injury before I can start receiving workers compensation benefits?

    7.  Kentucky workers compensation law requires that a worker that suffers a work injury must miss work seven consecutive days before he or she is eligible to receive Kentucky workers compensation benefits, which would be temporary total disability (TTD) benefits. If the injured worker misses more then 14 days, he or she will then receive benefits covering the first 7 days missed. 

    Lexington, Kentucky workers compensation lawyer Robert Abell represents individuals and families in Kentucky workers compensation cases; contact him at 859-254-7076. 

  • What is a permanent impairment rating under Kentucky workers compensation?

    Under Kentucky workers compensation law a "permanent impairment rating" means the "percentage of whole body impairment caused by the injury or occupational disease as determined by the AMA Guide to the Evaluation of Permanent Impairment."  In 2011 the 5th edition of the AMA guide is being used in Kentucky.

    Lexington, Kentucky workers compensation lawyer Robert Abell represents employees that suffer a work injury and need Kentucky workers compensation benefits or medical treatment; contact him at 859-254-7076.
     

    May be this can answer some more questions that you might have about Kentucky workers compensation law and claims: 


    Who decides my claim for Kentucky workers compensation benefits?

    How are my Kentucky workers compensation benefits affected if I am injured and can still work but not in the same type job I was working when I was hurt?

    Can I choose my own doctor to treat my work injury under Kentucky workers compensation law?

    How long do I have to file my claim for Kentucky workers compensation benefits?

    If I suffer a work injury in Kentucky, does Kentucky workers compensation compensate me for pain and suffering? 

  • What is the highest impairment rating in Kentucky workers compensation?

    100% or total disability/impairment is the highest impairment rating in Kentucky workers compensation law.  Workers that have suffered really bad work injuries can have a 100% impairment and/or be considered totally disabled. 

    Lexington, Kentucky workers compensation lawyer Robert Abell represents individuals and employees in Kentucky workers compensation cases; contact him at 859-254-7076. 

     

  • How many days of work do I have to miss before I can get Kentucky workers compensation temporary total disability (TTD) benefits?

    7.  Under Kentucky workers compensation law an injured employee has to miss at least seven (7) work days because of a work injury to be able to receive temporary total disability (TTD) benefits.  If the injured worker misses fourteen (14) days of work, he or she becomes eligible to received TTD benefits covering the first seven days that were missed. 

    What are temporary total disability benefits?

    Lexington, Kentucky workers compensation lawyer Robert Abell represents individuals and employees in Kentucky workers compensation cases; contact him at 859-254-7076. 

  • What are temporary total disability (TTD) benefits under Kentucky workers compensation?

    Temporary total disability (TTD) benefits are income benefits paid to an employee that has suffered a work injury that causes them to miss work.  Under Kentucky workers compensation law TTD benefits payable to an injured employee are usually but not always equal to 2/3 or 66.6% of the injured worker's average weekly wage.

    How many days of work do I have to miss before I start getting TTD benefits?

    Lexington, Kentucky workers compensation lawyer Robert Abell represents individuals with a work injury for Kentucky workers compensation benefits; contact him at 859-254-7076.

  • Can a Kentucky workers compensation ALJ disbelieve or believe the testimony of any witness?

    Kentucky workers compensation law designates an ALJ as the finder of fact in Kentucky workers compensation cases. The Kentucky Supreme Court recently described an ALJ's fact-finding authority in Kroger v. Ligon, No 2010-SC-385-WC (May 19, 2011), as follows:

    "An ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party's total proof." Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).

    Lexington, Kentucky workers comp lawyer Robert Abell represents injured employees in Kentucky workers compensation cases; contact him at 859-254-7076.

  • Can a Kentucky workers compensation ALJ reject the testimony of any witness?

    An ALJ is designated as the finder of fact in Kentucky workers compensation cases.  The Kentucky Supreme Court recently described an ALJ's fact-finding authority in Kroger v. Ligon, No 2010-SC-385-WC (May 19, 2011), as follows:

    "An ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party's total proof." Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977)

    Lexington, Kentucky workers comp lawyer Robert Abell represents injured employees in Kentucky workers compensation cases; contact him at 859-254-7076. 

  • Can I Receive Future Medical Treatment for my Kentucky Work Injury Even Though I Have No Permanent Impairment Rating?

    The answer appears to be yes, according to the recent decision of the Kentucky Supreme Court in Kroger v. Ligon, No 2010-SC-385-WC (May 19, 2011).

    The injured employee, Japheth Ligon, injured his shoulder and underwent surgery that included permanent implantation of hardware in his shoulder.  But Ligon apparently recovered well, as the Court left alone a finding of no permanent impairment. However, the Court also ruled that he should be allowed future medical benefits for proper treatment of his shoulder. In support of his ruling, the Court explained its prior decision in FEI Installation v. Williams, 214 S.W.3d 313 (Ky. 2007), as follows:  "the presence of impairment demonstrates a harmful change in the human organism and 'disability,' regardless of whether the impairment and resulting disability are severe enough to warrant a permanent impairment rating or permanent income benefits." 

    Lexington, Kentucky workers comp lawyer Robert Abell represents injured employees in Kentucky workers compensation cases; contact him at 859-254-7076.   

  • Can I be fired for being on Kentucky workers compensation?

    It is a violation of Kentucky workers compensation law for an employer to fire or retaliate in some other way against an employee that has filed or has indicated he intends to file a claim for Kentucky workers compensation benefits. It is an unlawful and wrongful termination where a worker is fired because he or she has filed a claim for Kentucky workers compensation benefits.

    Lexington, Kentucky workers compensation lawyer Robert L. Abell has represented in lawsuits workers fired because they had filed or indicated that they intend to file a claim for Kentucky workers compensation benefits.  See Kentucky Workers Compensation Retaliation - Judgment Awarding Damages & Punitive Damages, Workers Compensation Retaliation, Malicious Prosecution & Abuse of Process - Isham v. ABF Freight Systems - Complaint, Workers Compensation Retaliation - Works v. LexTran - "Dismissed LexTran Driver To Return To Work Monday"; Lexington Herald-Leader, October 14, 1995

  • How long can I receive workers compensation in Kentucky?

    The time span which you can receive Kentucky workers compensation benefits depends on the severity of your injury and the disability rating.

    If you have a permanent partial disability rating of 50% or less, you can receive Kentucky workers compensation benefits for 425 weeks.

    If you have a permanent partial disability rating of more than 50%, you can receive Kentucky workers compensation benefits for 520 weeks.

    If you are totally disabled and cannot work any longer, you can receive Kentucky workers compensation benefits up to the time that you reach your full Social Security retirement age. 

    Lexington, Kentucky workers comp lawyer Robert Abell represents individuals and employees in Kentucky workers compensation cases; contact him at 859-254-7076. 

  • Do I get a jury trial in a Kentucky workers comp case?

    No; you don't get a jury trial in a Kentucky workers comp case.  Your case will be decided by an administrative law judge (often referred to as an ALJ). .

    If you have been hurt on the job in Kentucky, contact Lexington, Kentuky workers comp lawyer Robert Abell at 859-254-7076. 

  • How do you get a jury trial for a workers comp claim in Kentucky?

    There is no right to a jury trial for a workers comp claim in Kentucky.  If there is a contested hearing in a Kentucky workers compensation claim, it will be before and will be decided by an Administrative Law Judge.  There are 16 Administrative Law Judges in the Kentucky Department of Workers Claims.

    If you have been hurt on the job in Kentucky, contact Lexington, Kentucky workers comp lawyer Robert Abell at 859-254-7076. 

  • Can you sue if you get Kentucky workers compensation benefits?

    It depends.  If you get Kentucky workers compensation benefits, you can't also sue your employer. 

    If a third party was responsible for your work injury, you may be able to sue them.  An example of where you would be able to sue a third party for damages if you also receive Kentucky workers compensation benefits would be a situation where you are driving your employer's vehicle on your job and you are injured due to some other driver's negligence. 

    If you have suffered a work injury and have a claim for Kentucky workers compensation benefits, contact Lexington, Kentucky workers compensation lawyer Robert Abell at 859-254-7076.