KRS 342.316: Liability of employer and previous employers for occupational disease --

Claims procedure -- Administrative regulations -- Time limitations on claims --

Determination of liable employer -- Audit -- Amount of compensation -- Effect

of concluded coal workers' pneumoconiosis claim.

(1) (a) The employer liable for compensation for occupational disease shall be the

employer in whose employment the employee was last exposed to the hazard

of the occupational disease. During any period in which this sec tion is

applicable to a coal mine, an operator who acquired it or substantially all of its

assets from a person who was its operator on and after January 1, 1973, shall

be liable for, and secure the payment of, the benefits which would have been

payable by the prior operator under this section with respect to miners

previously employed in the mine if it had not been acquired by such later

operator. At the same time, however, this subsection does not relieve the prior

operator of any liability under this sec tion. Also, it does not affect whatever

rights the later operator might have against the prior operator.

(b) The time of the beginning of compensation payments shall be the date of the

employee's last injurious exposure to the cause of the disease, or the date of

actual disability, whichever is later.

(2) The procedure with respect to the giving of notice and determination of claims in

occupational disease cases and the compensation and medical benefits payable for

disability or death due to the disease sha ll be the same as in cases of accidental

injury or death under the general provisions of this chapter, except that notice of

claim shall be given to the employer as soon as practicable after the employee first

experiences a distinct manifestation of an occ upational disease in the form of

symptoms reasonably sufficient to apprise the employee that he or she has

contracted the disease, or a diagnosis of the disease is first communicated to him or

her, whichever shall first occur.

(3) The procedure for filing occupational disease claims shall be as follows:

(a) The application for resolution of claim shall set forth the complete work

history of the employee with a concise description of injurious exposure to a

specific occupational disease, together with the na me and addresses of the

employer or employers with the approximate dates of employment. The

application shall also include at least one (1) written medical report supporting

his or her claim. This medical report shall be made on the basis of clinical or

X-ray examination performed in accordance with accepted medical standards

and shall contain full and complete statements of all examinations performed

and the results thereof. The report shall be made by a duly -licensed physician.

The commissioner shall prom ulgate administrative regulations which

prescribe the format of the medical report required by this section and the

manner in which the report shall be completed.

1. For coal -related occupational pneumoconiosis claims, each clinical

examination shall inclu de a chest X -ray interpretation by a National

Institute of Occupational Safety and Health (NIOSH) certified "B"

reader. The chest X -ray upon which the report is made shall be filed

with the application as well as spirometric tests when pulmonary

dysfunction is alleged.

2. For other compensable occupational pneumoconiosis claims, each

clinical examination shall include a chest X -ray examination and

appropriate pulmonary function tests.

(b) To be admissible, medical evidence offered in any proceeding under th is

chapter for determining a claim for occupational pneumoconiosis resulting

from exposure to coal dust shall comply with accepted medical standards as

follows:

1. Chest X-rays shall be of acceptable quality with respect to exposure and

development and sha ll be indelibly labeled with the date of the X -ray

and the name and Social Security number of the claimant. Physicians'

reports of X-ray interpretations shall: identify the claimant by name and

Social Security number; include the date of the X-ray and the date of the

report; classify the X -ray interpretation using the latest ILO

Classification and be accompanied by a completed copy of the latest ILO

Classification report. Only interpretations by National Institute of

Occupational Safety and Health (NIOSH) c ertified "B" readers shall be

admissible.

2. Spirometric testing shall be conducted in accordance with the standards

recommended in the "Guides to the Evaluation of Permanent

Impairment" and the 1978 ATS epidemiology standardization project

with the except ion that the predicted normal values for lung function

shall not be adjusted based upon the race of the subject. The FVC or the

FEV1 values shall represent the largest of such values obtained from

three (3) acceptable forced expiratory volume maneuvers as corrected to

BTPS (body temperature, ambient pressure and saturated with water

vapor at these conditions) and the variance between the two (2) largest

acceptable FVC values shall be either less than five percent (5%) of the

largest FVC value or less than o ne hundred (100) milliliters, whichever

is greater. The variance between the two (2) largest acceptable FEV1

values shall be either less than five percent (5%) of the largest FEV1

value or less than one hundred (100) milliliters, whichever is greater.

Reports of spirometric testing shall include a description by the

physician of the procedures utilized in conducting such spirometric

testing and a copy of the spirometric chart and tracings from which

spirometric values submitted as evidence were taken. If it is shown that

the spirometric testing is not valid due to inadequate cooperation or poor

effort on the part of the claimant, the claimant's right to take or prosecute

any proceedings under this chapter shall be suspended until the refusal

or obstruction c eases. No compensation shall be payable for the period

during which the refusal or obstruction continues.

3. The commissioner shall promulgate administrative regulations pursuant

to KRS Chapter 13A as necessary to effectuate the purposes of this

section. The commissioner shall periodically review the applicability of

the spirometric test values contained in the "Guides to the Evaluation of

Permanent Impairment" and may by administrative regulation substitute

other spirometric test values which are found to be more closely

representative of the normal pulmonary function of the coal mining

population.

4. The procedure for determination of occupational disease claims shall be

as follows:

a. Immediately upon receipt of an application for resolution of claim,

the commissioner shall notify the responsible employer and all

other interested parties and shall furnish them with a full and

complete copy of the application.

b. The commissioner shall a ssign the claim to an administrative law

judge and shall promptly refer the employee to a duly qualified "B"

reader physician who is licensed in the Commonwealth and is a

board-certified pulmonary specialist as set forth pursuant to KRS

342.315 and 342.794(1). The report from this examination shall be

provided to all parties of record. The employee shall not be

referred by the commissioner for examination within two (2) years

following any prior referral for examination for the same disease.

c. The commissioner shall develop a procedure to annually audit the

performance of physicians and facilities that are selected to

perform examinations pursuant to this section. The audit shall

include an evaluation of the physician and facility with respect to

the timeliness and completeness of the reports and the frequency at

which the physician's classification of an X -ray differs from those

of the other physicians of that X -ray. The commissioner shall

remove a physician or facility from selection consideration if the

physician or facility consistently renders incomplete or untimely

reports or if the physician's interpretations of X -rays are not in

conformity with the readings of other physicians of record at least

fifty percent (50%) of the time. The report required und er this

subdivision shall be provided to the Interim Joint Committee on

Economic Development and Workforce Investment on or before

July 1, 2019, and on or before July 1 of each year thereafter.

d. In coal workers' pneumoconiosis claims, if the physician se lected

by the commissioner interprets an X -ray as positive for

complicated coal workers' pneumoconiosis, the commissioner

shall refer the employee to the facility at which the claimant was

previously evaluated for a computerized tomography scan in order

to verify the findings. The computerized tomography scan shall be

interpreted by the facility and a report shall be filed with the

commissioner. The employer, insurer, or payment obligor shall pay

the cost of the examination pursuant to the medical fee sched ule.

The administrative law judge may rely upon the findings in the

report in accepting or rejecting ILO radiographic evidence of the

disease required under KRS 342.732 for benefit determination.

e. Within forty -five (45) days following the notice of filin g an

application for resolution of claim, the employer or carrier shall

notify the commissioner and all parties of record of its acceptance

or denial of the claim. A denial shall be in writing and shall state

the specific basis for the denial.

f. The admin istrative law judge shall conduct such proceedings as

are necessary to resolve the claim and shall have authority to grant

or deny any relief, including interlocutory relief, to order additional

proof, to conduct a benefit review conference, or to take such other

action as may be appropriate to resolve the claim.

g. Unless a voluntary settlement is reached by the parties, or the

parties agree otherwise, the administrative law judge shall issue a

written determination within sixty (60) days following a heari ng.

The written determination shall address all contested issues and

shall be enforceable under KRS 342.305.

h. Within thirty (30) days of the receipt of the statement for the

evaluation, the employer, insurer, or payment obligor shall pay the

cost of the examination. Upon notice from the commissioner that

an evaluation has been scheduled, the employer, insurer, or

payment obligor shall forward the expenses of travel necessary to

attend the evaluation at the state employee reimbursement rates to

the employee within seven (7) days. However, if the employee has

alleged a pulmonary dysfunction but has not filed spirometric

evidence as required by paragraph (a) of this subsection at the time

the evaluation is scheduled by the commissioner, the employee

will be r esponsible for fifty percent (50%) of the cost of the

evaluation.

5. The procedure for appeal from a determination of an administrative law

judge shall be as set forth in KRS 342.285.

(4) (a) The right to compensation under this chapter resulting from an o ccupational

disease shall be forever barred unless a claim is filed with the commissioner

within three (3) years after the last injurious exposure to the occupational

hazard or after the 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, whichever shall last

occur; and if death results from the occupational disease within that period,

unless a claim therefor be filed w ith the commissioner within three (3) years

after the death; but that notice of claim shall be deemed waived in case of

disability or death where the employer, or its insurance carrier, voluntarily

makes payment therefor, or if the incurrence of the diseas e or the death of the

employee and its cause was known to the employer. However, the right to

compensation for any occupational disease shall be forever barred, unless a

claim is filed with the commissioner within five (5) years from the last

injurious exp osure to the occupational hazard, except that, in cases of

radiation disease, asbestos -related disease, or a type of cancer specified in

KRS 61.315(11)(b), a claim must be filed within twenty (20) years from the

last injurious exposure to the occupational hazard.

(b) Income benefits for the disease of pneumoconiosis resulting from exposure to

coal dust or death therefrom shall not be payable unless the employee has

been exposed to the hazards of such pneumoconiosis in the Commonwealth of

Kentucky over a con tinuous period of not less than two (2) years during the

ten (10) years immediately preceding the date of his or her last exposure to

such hazard, or for any five (5) of the fifteen (15) years immediately preceding

the date of such last exposure.

(5) The amount of compensation payable for disability due to occupational disease or

for death from the disease, and the time and manner of its payment, shall be as

provided for under the general provisions of the Workers' Compensation Act, but:

(a) In no event sha ll the payment exceed the amounts that were in effect at the

time of the last injurious exposure;

(b) The time of the beginning of compensation payments shall be the date of the

employee's last injurious exposure to the cause of the disease, or the date of

actual disability, whichever is later; and

(c) In case of death where the employee has been awarded compensation or made

timely claim within the period provided for in this section, and an employee

has suffered continuous disability to the date of his or her death occurring at

any time within twenty (20) years from the date of disability, his or her

dependents, if any, shall be awarded compensation for his or her death as

provided for under the general provisions of the Workers' Compensation Act

and in this section, except as provided in KRS 342.750(6).

(6) If an autopsy has been performed, no testimony relative thereto shall be admitted

unless the employer or its representative has available findings and reports of the

pathologist or doctor who performed the autopsy examination.

(7) No compensation shall be payable for occupational disease if the employee at the

time of entering the employment of the employer by whom compensation would

otherwise be payable, falsely represented himself or herself, in writing , as not

having been previously disabled, laid-off, or compensated in damages or otherwise,

because of the occupational disease, or failed or omitted truthfully to state to the

best of his or her knowledge, in answer to written inquiry made by the employer, the

place, duration, and nature of previous employment, or, to the best of his or her

knowledge, the previous state of his or her health.

(8) No compensation for death from occupational disease shall be payable to any

person whose relationship to the dec eased, which under the provisions of this

chapter would give right to compensation, arose subsequent to the beginning of the

first compensable disability, except only for after -born children of a marriage

existing at the beginning of such disability.

(9) Whenever any claimant misconceives his or her remedy and files an application for

adjustment of claim under the general provisions of this chapter and it is

subsequently discovered, at any time before the final disposition of the cause, that

the claim for i njury, disability, or death which was the basis for his or her

application should properly have been made under the provisions of this section,

then the application so filed may be amended in form or substance, or both, to assert

a claim for injury, disabi lity, or death under the provisions of this section, and it

shall be deemed to have been so filed as amended on the date of the original filing

thereof, and compensation may be awarded that is warranted by the whole evidence

pursuant to the provisions of t his chapter. When amendment of this type is

submitted, further or additional evidence may be heard when deemed necessary.

Nothing this section contains shall be construed to be or permit a waiver of any of

the provisions of this chapter with reference to n otice of time for filing of a claim,

but notice of filing a claim, if given or done, shall be deemed to be a notice of filing

of a claim under provisions of this chapter, if given or done within the time required

by this subsection.

(10) When an employee h as an occupational disease that is covered by this chapter, the

employer in whose employment he or she was last injuriously exposed to the hazard

of the disease, and the employer's insurance carrier, if any, at the time of the

exposure, shall alone be liable therefor, without right to contribution from any prior

employer or insurance carrier, except as otherwise provided in this chapter.

(11) (a) For claims filed on or before June 30, 2017, income benefits for coal -related

occupational pneumoconiosis shall be paid fifty percent (50%) by the

Kentucky coal workers' pneumoconiosis fund as established in KRS 342.1242

and fifty percent (50%) by the employer in whose employment the employee

was last exposed to the hazard of that occupational disease.

(b) Income benefits for coal-related occupational pneumoconiosis for claims filed

after June 30, 2017, shall be paid by the employer in whose employment the

employee was last exposed to the hazards of coal workers' pneumoconiosis.

(c) Compensation for all other occupational disease shall be paid by the employer

in whose employment the employee was last exposed to the hazards of the

occupational disease.

(12) A concluded claim for benefits by reason of contraction of coal workers'

pneumoconiosis in the severance or proce ssing of coal shall bar any subsequent

claim for benefits by reason of contraction of coal workers' pneumoconiosis, unless

there has occurred in the interim between the conclusion of the first claim and the

filing of the second claim at least two (2) years of employment wherein the

employee was continuously exposed to the hazards of the disease in the

Commonwealth.