{"data":{"id":"us-ky/krs-342.316","jurisdiction":"us-ky","citation":"KRS 342.316","heading":"Liability of employer and previous employers for occupational disease --","body":"Claims procedure -- Administrative regulations -- Time limitations on claims --\nDetermination of liable employer -- Audit -- Amount of compensation -- Effect\nof concluded coal workers' pneumoconiosis claim.\n(1) (a) The employer liable for compensation for occupational disease shall be the\nemployer in whose employment the employee was last exposed to the hazard\nof the occupational disease. During any period in which this sec tion is\napplicable to a coal mine, an operator who acquired it or substantially all of its\nassets from a person who was its operator on and after January 1, 1973, shall\nbe liable for, and secure the payment of, the benefits which would have been\npayable by  the prior operator under this section with respect to miners\npreviously employed in the mine if it had not been acquired by such later\noperator. At the same time, however, this subsection does not relieve the prior\noperator of any liability under this sec tion. Also, it does not affect whatever\nrights the later operator might have against the prior operator.\n(b) The time of the beginning of compensation payments shall be the date of the\nemployee's last injurious exposure to the cause of the disease, or the date of\nactual disability, whichever is later.\n(2) The procedure with respect to the giving of notice and determination of claims in\noccupational disease cases and the compensation and medical benefits payable for\ndisability or death due to the disease sha ll be the same as in cases of accidental\ninjury or death under the general provisions of this chapter, except that notice of\nclaim shall be given to the employer as soon as practicable after the employee first\nexperiences a distinct manifestation of an occ upational disease in the form of\nsymptoms reasonably sufficient to apprise the employee that he or she has\ncontracted the disease, or a diagnosis of the disease is first communicated to him or\nher, whichever shall first occur.\n(3) The procedure for filing occupational disease claims shall be as follows:\n(a) The application for resolution of claim shall set forth the complete work\nhistory of the employee with a concise description of injurious exposure to a\nspecific occupational disease, together with the na me and addresses of the\nemployer or employers with the approximate dates of employment. The\napplication shall also include at least one (1) written medical report supporting\nhis or her claim. This medical report shall be made on the basis of clinical or\nX-ray examination performed in accordance with accepted medical standards\nand shall contain full and complete statements of all examinations performed\nand the results thereof. The report shall be made by a duly -licensed physician.\nThe commissioner shall prom ulgate administrative regulations which\nprescribe the format of the medical report required by this section and the\nmanner in which the report shall be completed.\n1. For coal -related occupational pneumoconiosis claims, each clinical\nexamination shall inclu de a chest X -ray interpretation by a National\nInstitute of Occupational Safety and Health (NIOSH) certified \"B\"\nreader. The chest X -ray upon which the report is made shall be filed\nwith the application as well as spirometric tests when pulmonary\ndysfunction is alleged.\n2. For other compensable occupational pneumoconiosis claims, each\nclinical examination shall include a chest X -ray examination and\nappropriate pulmonary function tests.\n(b) To be admissible, medical evidence offered in any proceeding under th is\nchapter for determining a claim for occupational pneumoconiosis resulting\nfrom exposure to coal dust shall comply with accepted medical standards as\nfollows:\n1. Chest X-rays shall be of acceptable quality with respect to exposure and\ndevelopment and sha ll be indelibly labeled with the date of the X -ray\nand the name and Social Security number of the claimant. Physicians'\nreports of X-ray interpretations shall: identify the claimant by name and\nSocial Security number; include the date of the X-ray and the date of the\nreport; classify the X -ray interpretation using the latest ILO\nClassification and be accompanied by a completed copy of the latest ILO\nClassification report. Only interpretations by National Institute of\nOccupational Safety and Health (NIOSH) c ertified \"B\" readers shall be\nadmissible.\n2. Spirometric testing shall be conducted in accordance with the standards\nrecommended in the \"Guides to the Evaluation of Permanent\nImpairment\" and the 1978 ATS epidemiology standardization project\nwith the except ion that the predicted normal values for lung function\nshall not be adjusted based upon the race of the subject. The FVC or the\nFEV1 values shall represent the largest of such values obtained from\nthree (3) acceptable forced expiratory volume maneuvers as corrected to\nBTPS (body temperature, ambient pressure and saturated with water\nvapor at these conditions) and the variance between the two (2) largest\nacceptable FVC values shall be either less than five percent (5%) of the\nlargest FVC value or less than o ne hundred (100) milliliters, whichever\nis greater. The variance between the two (2) largest acceptable FEV1\nvalues shall be either less than five percent (5%) of the largest FEV1\nvalue or less than one hundred (100) milliliters, whichever is greater.\nReports of spirometric testing shall include a description by the\nphysician of the procedures utilized in conducting such spirometric\ntesting and a copy of the spirometric chart and tracings from which\nspirometric values submitted as evidence were taken. If it  is shown that\nthe spirometric testing is not valid due to inadequate cooperation or poor\neffort on the part of the claimant, the claimant's right to take or prosecute\nany proceedings under this chapter shall be suspended until the refusal\nor obstruction c eases. No compensation shall be payable for the period\nduring which the refusal or obstruction continues.\n3. The commissioner shall promulgate administrative regulations pursuant\nto KRS Chapter 13A as necessary to effectuate the purposes of this\nsection. The commissioner shall periodically review the applicability of\nthe spirometric test values contained in the \"Guides to the Evaluation of\nPermanent Impairment\" and may by administrative regulation substitute\nother spirometric test values which are found to be more closely\nrepresentative of the normal pulmonary function of the coal mining\npopulation.\n4. The procedure for determination of occupational disease claims shall be\nas follows:\na. Immediately upon receipt of an application for resolution of claim,\nthe commissioner shall notify the responsible employer and all\nother interested parties and shall furnish them with a full and\ncomplete copy of the application.\nb. The commissioner shall a ssign the claim to an administrative law\njudge and shall promptly refer the employee to a duly qualified \"B\"\nreader physician who is licensed in the Commonwealth and is a\nboard-certified pulmonary specialist as set forth pursuant to KRS\n342.315 and 342.794(1). The report from this examination shall be\nprovided to all parties of record. The employee shall not be\nreferred by the commissioner for examination within two (2) years\nfollowing any prior referral for examination for the same disease.\nc. The commissioner shall develop a procedure to annually audit the\nperformance of physicians and facilities that are selected to\nperform examinations pursuant to this section. The audit shall\ninclude an evaluation of the physician and facility with respect to\nthe timeliness and completeness of the reports and the frequency at\nwhich the physician's classification of an X -ray differs from those\nof the other physicians of that X -ray. The commissioner shall\nremove a physician or facility from selection consideration if the\nphysician or facility consistently renders incomplete or untimely\nreports or if the physician's interpretations of X -rays are not in\nconformity with the readings of other physicians of record at least\nfifty percent (50%) of the time. The report required und er this\nsubdivision shall be provided to the Interim Joint Committee on\nEconomic Development and Workforce Investment on or before\nJuly 1, 2019, and on or before July 1 of each year thereafter.\nd. In coal workers' pneumoconiosis claims, if the physician se lected\nby the commissioner interprets an X -ray as positive for\ncomplicated coal workers' pneumoconiosis, the commissioner\nshall refer the employee to the facility at which the claimant was\npreviously evaluated for a computerized tomography scan in order\nto verify the findings. The computerized tomography scan shall be\ninterpreted by the facility and a report shall be filed with the\ncommissioner. The employer, insurer, or payment obligor shall pay\nthe cost of the examination pursuant to the medical fee sched ule.\nThe administrative law judge may rely upon the findings in the\nreport in accepting or rejecting ILO radiographic evidence of the\ndisease required under KRS 342.732 for benefit determination.\ne. Within forty -five (45) days following the notice of filin g an\napplication for resolution of claim, the employer or carrier shall\nnotify the commissioner and all parties of record of its acceptance\nor denial of the claim. A denial shall be in writing and shall state\nthe specific basis for the denial.\nf. The admin istrative law judge shall conduct such proceedings as\nare necessary to resolve the claim and shall have authority to grant\nor deny any relief, including interlocutory relief, to order additional\nproof, to conduct a benefit review conference, or to take such other\naction as may be appropriate to resolve the claim.\ng. Unless a voluntary settlement is reached by the parties, or the\nparties agree otherwise, the administrative law judge shall issue a\nwritten determination within sixty (60) days following a heari ng.\nThe written determination shall address all contested issues and\nshall be enforceable under KRS 342.305.\nh. Within thirty (30) days of the receipt of the statement for the\nevaluation, the employer, insurer, or payment obligor shall pay the\ncost of the examination. Upon notice from the commissioner that\nan evaluation has been scheduled, the employer, insurer, or\npayment obligor shall forward the expenses of travel necessary to\nattend the evaluation at the state employee reimbursement rates to\nthe employee within seven (7) days. However, if the employee has\nalleged a pulmonary dysfunction but has not filed spirometric\nevidence as required by paragraph (a) of this subsection at the time\nthe evaluation is scheduled by the commissioner, the employee\nwill be r esponsible for fifty percent (50%) of the cost of the\nevaluation.\n5. The procedure for appeal from a determination of an administrative law\njudge shall be as set forth in KRS 342.285.\n(4) (a) The right to compensation under this chapter resulting from an o ccupational\ndisease shall be forever barred unless a claim is filed with the commissioner\nwithin three (3) years after the last injurious exposure to the occupational\nhazard or after the employee first experiences a distinct manifestation of an\noccupational disease in the form of symptoms reasonably sufficient to apprise\nthe employee that he or she has contracted the disease, whichever shall last\noccur; and if death results from the occupational disease within that period,\nunless a claim therefor be filed w ith the commissioner within three (3) years\nafter the death; but that notice of claim shall be deemed waived in case of\ndisability or death where the employer, or its insurance carrier, voluntarily\nmakes payment therefor, or if the incurrence of the diseas e or the death of the\nemployee and its cause was known to the employer. However, the right to\ncompensation for any occupational disease shall be forever barred, unless a\nclaim is filed with the commissioner within five (5) years from the last\ninjurious exp osure to the occupational hazard, except that, in cases of\nradiation disease, asbestos -related disease, or a type of cancer specified in\nKRS 61.315(11)(b), a claim must be filed within twenty (20) years from the\nlast injurious exposure to the occupational hazard.\n(b) Income benefits for the disease of pneumoconiosis resulting from exposure to\ncoal dust or death therefrom shall not be payable unless the employee has\nbeen exposed to the hazards of such pneumoconiosis in the Commonwealth of\nKentucky over a con tinuous period of not less than two (2) years during the\nten (10) years immediately preceding the date of his or her last exposure to\nsuch hazard, or for any five (5) of the fifteen (15) years immediately preceding\nthe date of such last exposure.\n(5) The amount of compensation payable for disability due to occupational disease or\nfor death from the disease, and the time and manner of its payment, shall be as\nprovided for under the general provisions of the Workers' Compensation Act, but:\n(a) In no event sha ll the payment exceed the amounts that were in effect at the\ntime of the last injurious exposure;\n(b) The time of the beginning of compensation payments shall be the date of the\nemployee's last injurious exposure to the cause of the disease, or the date of\nactual disability, whichever is later; and\n(c) In case of death where the employee has been awarded compensation or made\ntimely claim within the period provided for in this section, and an employee\nhas suffered continuous disability to the date of his or her death occurring at\nany time within twenty (20) years from the date of disability, his or her\ndependents, if any, shall be awarded compensation for his or her death as\nprovided for under the general provisions of the Workers' Compensation Act\nand in this section, except as provided in KRS 342.750(6).\n(6) If an autopsy has been performed, no testimony relative thereto shall be admitted\nunless the employer or its representative has available findings and reports of the\npathologist or doctor who performed the autopsy examination.\n(7) No compensation shall be payable for occupational disease if the employee at the\ntime of entering the employment of the employer by whom compensation would\notherwise be payable, falsely represented himself or herself, in writing , as not\nhaving been previously disabled, laid-off, or compensated in damages or otherwise,\nbecause of the occupational disease, or failed or omitted truthfully to state to the\nbest of his or her knowledge, in answer to written inquiry made by the employer, the\nplace, duration, and nature of previous employment, or, to the best of his or her\nknowledge, the previous state of his or her health.\n(8) No compensation for death from occupational disease shall be payable to any\nperson whose relationship to the dec eased, which under the provisions of this\nchapter would give right to compensation, arose subsequent to the beginning of the\nfirst compensable disability, except only for after -born children of a marriage\nexisting at the beginning of such disability.\n(9) Whenever any claimant misconceives his or her remedy and files an application for\nadjustment of claim under the general provisions of this chapter and it is\nsubsequently discovered, at any time before the final disposition of the cause, that\nthe claim for i njury, disability, or death which was the basis for his or her\napplication should properly have been made under the provisions of this section,\nthen the application so filed may be amended in form or substance, or both, to assert\na claim for injury, disabi lity, or death under the provisions of this section, and it\nshall be deemed to have been so filed as amended on the date of the original filing\nthereof, and compensation may be awarded that is warranted by the whole evidence\npursuant to the provisions of t his chapter. When amendment of this type is\nsubmitted, further or additional evidence may be heard when deemed necessary.\nNothing this section contains shall be construed to be or permit a waiver of any of\nthe provisions of this chapter with reference to n otice of time for filing of a claim,\nbut notice of filing a claim, if given or done, shall be deemed to be a notice of filing\nof a claim under provisions of this chapter, if given or done within the time required\nby this subsection.\n(10) When an employee h as an occupational disease that is covered by this chapter, the\nemployer in whose employment he or she was last injuriously exposed to the hazard\nof the disease, and the employer's insurance carrier, if any, at the time of the\nexposure, shall alone be liable therefor, without right to contribution from any prior\nemployer or insurance carrier, except as otherwise provided in this chapter.\n(11) (a) For claims filed on or before June 30, 2017, income benefits for coal -related\noccupational pneumoconiosis shall be paid fifty percent (50%) by the\nKentucky coal workers' pneumoconiosis fund as established in KRS 342.1242\nand fifty percent (50%) by the employer in whose employment the employee\nwas last exposed to the hazard of that occupational disease.\n(b) Income benefits for coal-related occupational pneumoconiosis for claims filed\nafter June 30, 2017, shall be paid by the employer in whose employment the\nemployee was last exposed to the hazards of coal workers' pneumoconiosis.\n(c) Compensation for all other occupational disease shall be paid by the employer\nin whose employment the employee was last exposed to the hazards of the\noccupational disease.\n(12) A concluded claim for benefits by reason of contraction of coal workers'\npneumoconiosis in the severance or proce ssing of coal shall bar any subsequent\nclaim for benefits by reason of contraction of coal workers' pneumoconiosis, unless\nthere has occurred in the interim between the conclusion of the first claim and the\nfiling of the second claim at least two (2) years  of employment wherein the\nemployee was continuously exposed to the hazards of the disease in the\nCommonwealth.","path":["KRS Chapter 342"],"source_url":"https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=47621","current_through":"Includes enactments through the 2026 Regular Session","vintage":"09/05/2026","retrieved_at":"2026-09-05T20:58:31Z","sha256":"cce8d46a010763eb8ca23ba0440388ee9472139259a63d714215498a653f39ae","source_id":"us-ky","stale":false,"prev":"us-ky/krs-342.315","next":"us-ky/krs-342.317"},"notice":"GroundRules: Original legal text. Not legal advice."}