FEE SCHEDULE NEWS:

• The Department of Workers’ Compensation has updated the Medical Fee Schedule for Physicians with an effective date of July 1, 2018.  The 2018 Workers’ Compensation Schedule of Fees for Physicians will completely replace the 2016 fee schedule. 

REGULATORY ACTIVITY:

• For all Applications for Resolution of Claim filed on or after June 16, 2018, the Department of Workers' Claims will first issue a document titled "LMS ACCESS CODE NOTIFICATION," the purpose of which is to provide all parties the LMS access code assigned to that claim in order to allow the parties to associate to the claim for the purpose of filing pleadings. The Department of Workers' Claims will subsequently issue a document titled "NOTICE OF FILING OF APPLICATION" pursuant to 803 KAR 25:010 Section (2) (a).  This document will constitute notice that a claim has been filed for the purposes of filing a Notice of Claim Denial or Acceptance (Form 111) and Notice of Disclosure; assign the claim to an ALJ; schedule the date, time and location of the Benefit Review Conference; establish the schedule for proof-taking; and state the week during which a hearing is to be held.  To view this notice, go to https://labor.ky.gov/announcements/Pages/Announcement4.aspx.

LEGISLATIVE ACTIONS:

House Bill 2

The legislation amends KRS 342.020 to establish that, only for workers’ compensation insurance claims resulting in an award of permanent total disability or resulting from injuries listed in subsection (9) (amputation of a limb, loss of hearing, or loss of vision), the employer’s obligation to pay benefits continues so long as the employee is disabled, regardless of the duration of the employee’s income benefits. For permanent partial disability claims not involving a subsection (9) injury, the employer’s obligation to pay benefits would extend for 780 weeks from date of injury or date of last exposure; thereafter, benefits would continue so long as the employee demonstrates, and an administrative law judge determines that continued medical treatment is reasonably necessary and is related to the work injury or occupational disease. The bill would require the commissioner notify an employee of the right to apply for continued benefits and the employee to file an application for continued benefits 75 days before the end of the 780-week benefit period.  If an employee fails to apply for continued benefits or a judge determines benefits are not reasonably necessary or not related to the work injury or occupational disease the employer’s obligation to pay medical benefits would cease permanently at the end of 780 weeks (15 years).  Section 1 would limit the number of urine screenings an employer would be obligated to pay for.  The legislation allows waiver of utilization review under identified circumstances; prohibit a provider charging a fee for an initial copy of medical records for the worker or their attorney; require development or adoption of a pharmaceutical formulary and promulgation of regulations to implement the formulary.  The legislation deems no interest due on delayed payment of income payments if the delay was caused by the employee.  The legislation limits the time to reopen a claim to 4 years after the original award or order becomes final and non-appealable. The legislation bars a claim based on cumulative trauma injury unless notice was given to the employer and unless application for adjustment of claim has been made to the commissioner within 5 years after the last exposure to the cumulative trauma. It limits liability for compensation for occupational disease to the last employer where the employee was exposed to the hazard for a minimum of 1 year; require the payment obligor to pay for medical evaluation of an employee claiming pulmonary dysfunction unless the employee has failed to provide spirometric evidence, in which case the employee must pay 50% of the evaluation cost. HB 2 GA would extend the deadline for filing a claim for compensation due to the following cancers to 20 years from the last injurious exposure:  bladder cancer; brain cancer; colon cancer; non-Hodgkin's lymphoma, kidney cancer, liver cancer, lymphatic or hematopoietic cancer, prostate cancer, testicular cancer, skin cancer, cervical cancer, and breast cancer.  The legislation establishes new maximum limits on employee and employer attorneys’ fees.  It establishes that an employer is not liable for compensation where an employee’s injury is due to voluntary ingestion of prescribed or nonprescribed substances that caused disturbance of mental or physical capacity, or willful intention of an employee to injure or kill himself or another.  The legislation allows employers through their insurers and self-insured/employer to recover a pro-rata share of its subrogation lien (indemnity and medical benefits) when an employee recovers a judgment against a third party for the employee’s injuries that includes indemnity and medical benefits.   It increases the percentage of Kentucky’s average weekly wage that may be paid as an income benefit; change the age limit on benefits to 67 years (or 2 years after injury, whichever is later); income benefits to dependents would likewise cease when the employee would have reached age 67 or 2 years after injury or exposure; offset income benefit payable to certain injured employees by the amount the employee would have paid in taxes or the amount paid for temporary light duty; terminate income benefits for temporary total disability to a professional athlete when their contract expires if they’ve been released to return to employment for which they’ve trained or have experience. The legislation requires employment for one year prior to filing a claim for hearing loss.  Effective Date July 1, 2018.

House Bill 388

The legislation amends KRS 342.001 to establish that, for policies issued after January 1, 2019 that include a deductible, the special fund premium assessment would be calculated by the “deductible program adjustment” method, defined as “a method of calculating premiums and premiums received on a gross basis for any schedule rating modifications, debits, or credits as if the deductible contract is not being used to calculate coverage.” This provision is intended as guidance on, and transparency of, the premium assessment base for deductible policies. It requires, beginning January 1, 2020 all premium assessments, including those payable by self-insured employers and state and political subdivision (including city and county government) employers, be remitted to the funding commission electronically by the 30th day following the end of each quarter.  It amends KRS 342.1223(2)(b) to delete the term “non-dividend-paying” from the description of equity securities. It amends KRS 342.1231 to reduce the time period within which the funding commission may mail a notice of assessment to an assessment payer (insurance company) from 7 to 5 years, after which time the assessment would be barred. It requires an insurance carrier pay a refund owed an insured within 60 days of notice by the funding commission that the refund is owed. If the refund is unpaid on the due date a 1.5% late penalty shall be owed by the insurance carrier.  Effective Date July 1, 2018.

FEE SCHEDULE NEWS:

• A new Hospital Fee Schedule has been adopted with an effective date of April 1, 2018. The next scheduled update is expected April 2019.

LEGISLATIVE ACTIONS:

House Bill 220

The enacted legislation creates a new section of KRS Chapter 336 establishing the criteria under which a marketplace contractor is not deemed to be an employer of a marketplace platform; amend to add additional requirements to be considered a marketplace platform; amend to include additional exclusions to the section.  Effective Date June 30, 2018.

REGULATORY ACTIVITY:

• Kentucky posted a corrected compensation benefit schedule for 2017.   The Education and Workforce Development Cabinet, Office of Employment and Training, has certified that the average weekly wage for Kentucky for Calendar year 2016 was $848.41. Based upon that information and in accordance with KRS 342.143, the following determinations are made:
  • The increase in maximum income benefits under all provisions of the Workers' Compensation Act for the year 2016 over the year 2015 did amount to $2.00 or more; therefore, the maximum weekly indemnity benefits for calendar year 2018 shall be $848.41.
  • There was an increase of $1.00 or more in minimum income benefits; therefore, the minimum weekly indemnity benefits under all provisions of the Act shall be $169.67 for calendar year 2018.

FEE SCHEDULE NEWS:

• The DWC posted revisions to out of state cost to charge ratios retroactive to April 1, 2017 on September 28, 2017.

REGULATORY ACTIVITY:

• Post-award medical disputes can ONLY be filed by selecting the “Motion to Reopen (Medical Dispute)” tab on the “Submit a Filing” page.  LMS will lead the submitting party through preparation of a Motion to Reopen and Form 112 and will provide for the attachment of required supporting documents.

REGULATORY ACTIVITY:

• The DWC is receiving motions in paper form for approval of attorney fees filed more than 30 days after the finality of the decision and after the claim has been closed in LMS.   The DWC will no longer accept such paper motions after August 18, 2017.  Pursuant to 803 KAR 25:010 Section 6 (7) and (8), a motion for allowance of an attorney fee shall be filed within 30 days following the finality of the award, settlement or agreed resolution.  All such motions are now required to be filed electronically.  Once a claim is closed in LMS documents can no longer be filed in it.  A claim cannot be reopened under KRS 342.125 for consideration of a motion for approval of an attorney fee and there is no other process by which an untimely motion can be filed or considered.
• Published Kentucky's 2018 Benefit Schedule which becomes effective January 1, 2018.  The Education and Workforce Development Cabinet, Office of Employment and Training, has certified that the average weekly wage for Kentucky for Calendar year 2016 was $848.41.  Based upon that information and in accordance with KRS 342.143, the following determinations are made:
  • The  increase  in  maximum  income  benefits  under  all  provisions  of  the Workers' Compensation  Act for the year 2016 over the year 2015 did amount to  $2.00  or  more;  therefore,  the  maximum  weekly  indemnity  benefits  for calendar year 2018 shall  be $41.   
  • There was an increase of $1.00 or more in minimum income benefits; therefore, the minimum weekly indemnity benefits under all provisions of the Act shall be $169.67 for calendar year 2018.

REGULATORY ACTIVITY:

• All post-application pleadings MUST be served on all other parties by the submitting party either conventionally (by paper) or, by agreement, by electronic means. Submission of pleadings in LMS does not relieve the submitting party of the obligation to serve other parties pursuant to 803 KAR 25:010 Section 5 (2).

REGULATORY ACTIVITY:

• IMPORTANT NOTICE REGARDING SERVICE OF PLEADINGS:  All post-application pleadings MUST be served on all other parties by the submitting party either conventionally (by paper) or, by agreement, by electronic means.  Submission of pleadings in LMS does not relieve the submitting party of the obligation to serve other parties pursuant to 803 KAR 25:010 Section 5 (2).

LEGISLATIVE ACTIONS:

• House Bill 378
  An act relating to the Labor Cabinet. Omnibus provisions relating to the Labor Cabinet; amend KRS 189.635 to allow accident reports to be given to OSHA investigators without a subpoena; amend KRS 336.020 to rename divisions and change method of nomination for commissioner and director; amend KRS 337.010 to update ways that an employee may receive wages and prohibit activation fees for wages on a debit card; amend KRS 336.050 to give the secretary discretion to prosecute a violation of a wage and hour law; amend KRS 337.070 to provide that a statement of wages may be paper or electronic as long as employees have access to a computer and printer; amend KRS 342.0011 relating to the definition of commissioner; amend KRS 342.122 to change the names of Labor Cabinet divisions; amend KRS 342.213 and 342.228 to change the procedure for nominating commissioners; amend KRS 342.230 to make changes to the commissioner's authority; amend KRS 342.347 relating to exemptions under open records laws; amend KRS 12.020 to move and rename divisions; repeal the following: KRS 336.140, 336.151, 336.152, 336.153, 336.156, 336.162, 336.164, 336,165, 336,1221, 336,1662, 336,1663 and 336.1664. Effective Date June 30, 2017.

REGULATORY ACTIVITY:

• “The Workers' Compensation Nominating Committee is now accepting applications to fill a vacant position of Administrative Law Judge in the Kentucky Department of Workers' Claims.  Pursuant to KRS 342.230(3), the term for the vacant Administrative Law Judge position expires December 31, 2017.  This is a full-time position, subject to appointment by the Governor of and confirmation by the Kentucky State Senate.  Appointees shall not hold any other public office or maintain any private practice.”

LEGISLATIVE ACTIONS:

• House Bill 377
  The enacted legislation amends KRS 337.1223 to provide discretion to the Workers' Compensation Funding Commission to consult with the Office of Financial Management and grant the commission the authority to also contract with outside investment firms within the parameters of KRS Chapter 45A, and require that the Office of Financial Management be consulted and participate in the selection of outside investment firms; however, the Funding Commission has the final approval. Fees for the outside contracts shall be paid from the investment earnings.  The legislation  create a new section of KRS Chapter 342 for the General Assembly to declare the issues surrounding the Kentucky coal workers' pneumoconiosis fund; create a new section of KRS Chapter 342 to close the coal workers' pneumoconiosis fund on July 1, 2017 to all new claims, transfer liabilities and assets to the Kentucky Employers' Mutual Insurance Authority, and set forth assessment requirements for 2017 and 2018; amend KRS 342.1242, 342.316, 342.320, 342.732, 342.792, 342.794, and 342.120 to bring the statutes into conformity with closing the coal workers' pneumoconiosis fund and transfer to the Kentucky Employers' Mutual Insurance Authority. KRS 342.1241 is repealed; EMERGENCY. Effective Date: April 10, 2017.