KRS 342.125: Reopening and review of award or order -- Grounds -- Procedures -- Time

limitations -- Credit for previously -awarded retraining incentive benefits or

income benefits awarded for coal-related pneumoconiosis.

(1) Upon motion by any party or upon an administrative law judge's own motion, an

administrative law judge may reopen and review any award or order on any of the

following grounds:

(a) Fraud;

(b) Newly-discovered evidence which could not have been discovered with the

exercise of due diligence;

(c) Mistake; and

(d) Change of disability as shown by objective medical evidence of worsening or

improvement of impairment due to a condition caused by the injury since the

date of the award or order.

(2) No claim which has been previously dismissed or d enied on the merits shall be

reopened except upon the grounds set forth in this section.

(3) Except for reopening solely for determination of the compensability of medical

expenses, fraud, or conforming the award as set forth in KRS 342.730(1)(c)2., or for

reducing a permanent total disability award when an employee returns to work, or

seeking temporary total disability benefits during the period of an award, no claim

shall be reopened more than four (4) years following the date of the original award

or ori ginal order granting or denying benefits, when such an award or order

becomes final and nonappealable, and no party may file a motion to reopen within

one (1) year of any previous motion to reopen by the same party. Orders granting or

denying benefits that are entered subsequent to an original final award or order

granting or denying benefits shall not be considered to be an original order granting

or denying benefits under this subsection and shall not extend the time to reopen a

claim beyond four (4) year s following the date of the final, nonappealable original

award or original order.

(4) Reopening and review under this section shall be had upon notice to the parties and

in the same manner as provided for an initial proceeding under this chapter. Upon

reopening, the administrative law judge may end, diminish, or increase

compensation previously awarded, within the maximum and minimum provided in

this chapter, or change or revoke a previous order. The administrative law judge

shall immediately send all part ies a copy of the subsequent order or award.

Reopening shall not affect the previous order or award as to any sums already paid

thereunder, and any change in the amount of compensation shall be ordered only

from the date of filing the motion to reopen. No employer shall suspend benefits

during pendency of any reopening procedures except upon order of the

administrative law judge.

(5) (a) Upon the application of the affected employee, and a showing of progression

of his previously -diagnosed occupational pneu moconiosis resulting from

exposure to coal dust and development of respiratory impairment due to that

pneumoconiosis and two (2) additional years of employment in the

Commonwealth wherein the employee was continuously exposed to the

hazards of the disease, the administrative law judge may review an award or

order for benefits attributable to coal -related pneumoconiosis under KRS

342.732. An application for review under this subsection shall be made within

one (1) year of the date the employee knew or reason ably should have known

that a progression of his disease and development or progression of respiratory

impairment have occurred. Review under this subsection shall include a

review of all evidence admitted in all prior proceedings.

(b) Benefits awarded as a result of a review under this subsection shall be reduced

by the amount of retraining incentive benefits or income benefits previously

awarded under KRS 342.732. The amount to be deducted shall be subtracted

from the total amount awarded, and the remaini ng amount shall be divided by

the number of weeks, for which the award was made, to arrive at the weekly

benefit amount which shall be apportioned in accordance with the provisions

of KRS 342.316.

(6) In a reopening or review proceeding where there has bee n additional permanent

partial disability awarded, the increase shall not extend the original period, unless

the combined prior disability and increased disability exceeds fifty percent (50%),

but less than one hundred percent (100%), in which event the aw arded period shall

not exceed five hundred twenty (520) weeks, from commencement date of the

original disability previously awarded. The law in effect on the date of the original

injury controls the rights of the parties.

(7) Where an agreement has become an award by approval of the administrative law

judge, and a reopening and review of that award is initiated, no statement contained

in the agreement, whether as to jurisdiction, liability of the employer, nature and

extent of disability, or as to any other matter, shall be considered by the

administrative law judge as an admission against the interests of any party. The

parties may raise any issue upon reopening and review of this type of award which

could have been considered upon an original application for benefits.

(8) The time limitation prescribed in this section shall apply to all claims irrespective of

when they were incurred, or when the award was entered, or the settlement

approved. However, claims decided prior to December 12, 1996, may be reopened

within four (4) years of the award or order or within four (4) years of December 12,

1996, whichever is later, provided that the exceptions to reopening established in

subsections (1) and (3) of this section shall apply to these claims as well.