KRS 342.732: Income benefits and retraining incentive benefits for coal workers'

pneumoconiosis -- Referral to Office of Vocational Rehabilitation --

Administrative regulations -- Online portal.

(1) Notwithstanding any other provision of this chapter, income benefits and

retraining incentive benefits for occupational pneumoconiosis resulting from

exposure to coal dust in the severance or processing of coal shall be paid as

follows:

(a) 1. If an employee has a radiographic classification of category 1/0, 1/1

or 1/2, coal workers' pneumoconiosis and spirometric test values of

eighty percent (80%) or more, the employee shall be awarded a one

(1) time only retraining incentive benefit which shall be an amount

equal to sixty-six and two-thirds percent (66-2/3%) of the employee's

average weekly wage as determined by KRS 342.740, but not more

than seventy-five percent (75%) of the state average weekly wage,

payable semimonthly for a period not to exceed one hundred four

(104) weeks, except as provided in subparagraph 3. of this

paragraph.

2. Except as provided in subparagraph 3. of this paragraph, these

benefits shall be paid only while the employee is enrolled and

actively and successfully participating as a full-time student taking

the equivalent of twelve (12) or more credit hours per week in a

bona fide training or education program that if successfully

completed will qualify the person completing the course for a trade,

occupation, or profession and which program can be completed

within the period benefits are payable under this subsection. The

program must be approved under administrative regulations to be

promulgated by the commissioner. These benefits shall also be paid

to an employee who is a part-time student taking not less than the

equivalent of six (6) nor more than eleven (11) credit hours per

week, except that benefits shall be an amount equal to thirty-three

and one-third percent (33-1/3%) of the employee's average weekly

wage as determined by KRS 342.740, but not more than

thirty-seven and one-half percent (37-1/2%) of the state average

weekly wage, payable biweekly for a period not to exceed two

hundred eight (208) weeks.

3. These benefits shall also be paid biweekly while an employee is

actively and successfully pursuing a High School Equivalency

Diploma in accordance with administrative regulations promulgated

by the commissioner. These benefits shall be paid in the amount of

sixty-six and two-thirds percent (66-2/3%) of the employee's average

weekly wage not to exceed seventy-five percent (75%) of the state

average weekly wage for a maximum period not to exceed

seventeen (17) weeks. These income benefits shall be in addition to

the maximum amount of retraining incentive benefits payable under

this paragraph.

4. The employer shall also pay, directly to the institution conducting the

training or education program, instruction, tuition, and material costs

not to exceed five thousand dollars ($5,000).

5. The employee shall notify the parties of his or her intention to retrain

within thirty (30) days after the administrative law judge's order

becomes final. The employee must initiate retraining within three

hundred sixty-five (365) days of the administrative law judge's final

order. Income benefits payable under subparagraphs 1. and 2. of

this paragraph shall begin no later than thirty (30) days following

conclusion of income benefits paid under subparagraph 3. if such

benefits were paid.

6. If an employee who is awarded retraining incentive benefits under

this paragraph successfully completes a bona fide training or

education program approved by the commissioner, upon completion

of the training or education program, the employer shall pay to that

employee the sum of five thousand dollars ($5,000) for successful

completion of a program that requires a course of study of not less

than twelve (12) months nor more than eighteen (18) months, or the

sum of ten thousand dollars ($10,000) for successful completion of a

program that requires a course of study of more than eighteen (18)

months. This amount shall be in addition to retraining incentive

benefits awarded under this paragraph, and tuition expenses paid by

the employer.

7. An employee who is age fifty-seven (57) years or older on the date

of last exposure and who is awarded retraining incentive benefits

under subparagraphs 1. to 4. of this paragraph, may elect to receive

in lieu of retraining incentive benefits, an amount equal to sixty-six

and two-thirds percent (66-2/3%) of the employee's average weekly

wage, not to exceed seventy-five percent (75%) of the state average

weekly wage as determined by KRS 342.740 multiplied by the

disability rating of twenty-five percent (25%) for a period not to

exceed four hundred twenty-five (425) weeks, or until the employee

reaches sixty-five (65) years of age, whichever occurs first, KRS

342.730(4) notwithstanding.

8. A claim for retraining incentive benefits provided under this section

may be filed, but benefits shall not be payable, while an employee is

employed in the severance or processing of coal as defined in KRS

342.0011(23).

9. If an employer appeals an award of retraining incentive benefits,

upon an employee's motion, an administrative law judge may grant

retraining incentive benefits pending appeal as interlocutory relief.

10. If an employee elects to defer payment of retraining incentive

benefits for a period of retraining longer than three hundred sixty-five

(365) days, benefits otherwise payable shall be reduced

week-for-week for each week retraining benefits are further

deferred;

(b) 1. If an employee has a radiographic classification of category 1/0, 1/1,

or 1/2 coal workers' pneumoconiosis and respiratory impairment

evidenced by spirometric test values of fifty-five percent (55%) or

more but less than eighty percent (80%) of the predicted normal

values, or category 2/1, 2/2, or 2/3 coal workers' pneumoconiosis

and spirometric test values of eighty percent (80%) or more of the

predicted normal values, there shall be an irrebuttable presumption

that the employee has a disability rating of twenty-five percent (25%)

resulting from exposure to coal dust, and the employee shall be

awarded an income benefit which shall be an amount equal to

sixty-six and two-thirds percent (66-2/3%) of the employee's average

weekly wage, but not to exceed seventy-five percent (75%) of the

state average weekly wage as determined by KRS 342.740

multiplied by the disability rating of twenty-five percent (25%). The

award shall be payable for a period not to exceed four hundred

twenty-five (425) weeks.

2. An employee who is awarded benefits under this paragraph may, at

the time of the award or before benefit payments begin, elect to

receive retraining incentive benefits provided under paragraph (a)1.

to 6. of this subsection, in lieu of income benefits awarded under this

paragraph, provided that such option is available one (1) time only

and is not revocable, and provided that in no event shall income

benefits payable under this paragraph be stacked or added to

retraining incentive income benefits paid or payable under

subparagraphs 1. to 6. of paragraph (a)1. to 6. of this subsection to

extend the period of disability;

(c) If it is determined that an employee has a radiographic classification of

category 1/0, 1/1, or 1/2, and respiratory impairment resulting from

exposure to coal dust as evidenced by spirometric test values of less than

fifty-five percent (55%) of the predicted normal values, or category 2/1,

2/2, or 2/3 coal workers' pneumoconiosis and respiratory impairment

evidenced by spirometric test values of fifty-five percent (55%) or more

but less than eighty percent (80%) of the predicted normal values, or

category 3/2 or 3/3 coal workers' pneumoconiosis and spirometric test

values of eighty percent (80%) or more, there shall be an irrebuttable

presumption that the employee has a disability rating of fifty percent

(50%) resulting from exposure to coal dust, and the employee shall be

awarded an income benefit which shall be an amount equal to sixty-six

and two-thirds percent (66-2/3%) of the employee's average weekly wage

but not to exceed seventy-five percent (75%) of the state average weekly

wage as determined by KRS 342.740 multiplied by the disability rating of

fifty percent (50%). The award shall be payable for a period not to exceed

four hundred twenty-five (425) weeks;

(d) If it is determined that an employee has a radiographic classification of

category 2/1, 2/2, or 2/3 coal workers' pneumoconiosis, based on the

latest ILO International Classification of Radiographics, and respiratory

impairment as evidenced by spirometric test values of less than fifty-five

percent (55%) of the predicted normal values or category 3/2 or 3/3

pneumoconiosis and respiratory impairment evidenced by spirometric test

values of fifty-five percent (55%) or more but less than eighty percent

(80%) of the predicted normal values, there shall be an irrebuttable

presumption that the employee has a seventy-five percent (75%) disability

rating resulting from exposure to coal dust and the employee shall be

awarded income benefits which shall be equal to sixty-six and two-thirds

percent (66-2/3%) of the employee's average weekly wage but not to

exceed seventy-five percent (75%) of the state average weekly wage as

determined by KRS 342.740 multiplied by the disability rating of

seventy-five percent (75%). The award shall be payable for a period not

to exceed five hundred twenty (520) weeks. Income benefits awarded

under this paragraph shall be payable to the employee during the

disability; and

(e) If it is determined that an employee has radiographic classification of 3/2

or 3/3 occupational pneumoconiosis and respiratory impairment

evidenced by spirometric test values of less than fifty-five percent (55%)

of the predicted normal values, or complicated pneumoconiosis (large

opacities category A, B, or C progressive massive fibrosis), there shall be

an irrebuttable presumption that the employee is totally disabled resulting

from exposure to coal dust, and the employee shall be awarded income

benefits equal to sixty-six and two-thirds percent (66-2/3%) of the

employee's average weekly wage but not more than one hundred percent

(100%) of the state average weekly wage and not less than twenty

percent (20%) of the average weekly wage of the state as determined by

KRS 342.740. Income benefits awarded under this paragraph shall be

payable to the employee during such disability.

(2) The presence of respiratory impairment resulting from exposure to coal dust

shall be established by using the largest forced vital capacity (FVC) value or

the largest forced expiratory volume in one second (FEV1) value determined

from the totality of all such spirometric testing performed in compliance with

accepted medical standards.

(3) When valid spirometric tests are not provided and a physician certifies to the

administrative law judge that spirometric testing is not medically indicated

because of the permanent physical condition of the employee, the

administrative law judge shall make his or her decision on the basis of

evidence admitted which establishes the existence of a diagnosis of

occupational pneumoconiosis and respiratory impairment due to the

occupational pneumoconiosis. The evidence submitted by the employee shall

include one (1) or more arterial blood gas studies performed in accordance with

accepted medical standards. Income benefits shall not be awarded in the

absence of valid spirometric tests if the claimant's PO2 arterial blood gas value

is equal to or higher than one (1) standard deviation from the normal value

obtained by the formula (103.5 - 0.42X), where X equals the claimant's age at

the time of the arterial blood gas study.

(4) Upon request, the commissioner shall refer an employee who has been

awarded retraining incentive benefits under subsection (1)(a) of this section to

the Office of Vocational Rehabilitation for evaluation and assessment of the

training, education, or other services necessary to prepare the employee for a

trade, occupation, or profession that will return the employee to remunerative

employment, or services necessary and appropriate to prepare and enable the

employee to successfully complete a bona fide training or education program

approved by the commissioner. The commissioner shall contract with the Office

of Vocational Rehabilitation to provide vocational rehabilitation or education

services commensurate with the skill levels and abilities of the employee.

Services provided under this subsection shall be funded by the coal workers'

pneumoconiosis fund, KRS 342. 1242 notwithstanding, for claims filed on or

before June 30, 2017, and by the employer for claims filed after June 30, 2017.

(5) The commissioner shall promulgate administrative regulations sufficient to

effectuate the provisions relating to retraining incentive benefits provided under

subsection (1)(a) of this section. The administrative regulations shall:

(a) Create an online portal through which employees shall select a facility or

institution to provide their retraining. This portal shall list bona fide training

or education programs. These programs shall include postsecondary

programs registered with the Higher Education Assistance Authority, and

will qualify the employee for a trade, occupation, or profession. The

programs listed shall be capable of completion within the period benefits

are payable under subsection (1)(a) of this section;

(b) Establish requirements for approval and certification of a bona fide

training or education program;

(c) Provide that funds paid to the training or education program by the

employer as required under subsection (1)(a)4. of this section shall be

applied only to instruction, tuition, material costs, and any fees necessary

for the completion of the program;

(d) Establish requirements for successful participation in and completion of

an approved and certified bona fide training or education program, and

eligibility standards that must be satisfied to receive sums to be paid by

the employer pursuant to subsection (1)(a)6. of this section; and

(e) Establish attendance, performance and progress standards, and

reporting requirements in consultation with the Office of Adult Education

within the Department of Workforce Development in the Education and

Labor Cabinet as conditions that must be satisfied to receive retraining

incentive income benefits pursuant to subsection (1)(a)3. of this section.

(6) In no event shall income benefits awarded under this section be stacked or

added to income benefits awarded under KRS 342.730 to extend the period of

disability and in no event shall income or retraining incentive benefits be paid to

the employee while the employee is working in the mining industry in the

severance or processing of coal as defined in KRS 342.0011(23)(a).