HB 2 Analysis of Key Provisions

Caps on Medical Benefits: HB 2 terminates all medical treatment at 15 years from date of injury, except in permanent total disability, permanent partial paralysis and certain amputation cases.  HB 2 requires the Kentucky Department of Workers Claims (DWC) to send a Notice of Termination letter to each injured worker at 26 weeks prior to the expiration of their entitlement to medical benefits; requires the injured worker to obtain and file medical documents by the physician explaining the need for ongoing treatment within 75 days of the expiration of fifteen years; and medical benefits must be approved by an Administrative Law Judge (ALJ) before benefits can continue.  Under current law injured workers are entitled to related medical benefits for the duration of their disability and insurers are permitted to challenge medical treatment. 

Interest Penalties: HB 2 allows insurers to avoid paying interest for delaying disability and/or medical benefit payments to injured workers if an ALJ finds the “delay was caused by the employee.”  This shifts the burden of proof to injured workers by requiring them to prove they were not the cause of the delay.  In 2017, interest for past due benefits were reduced from 12% to 6% and “delay” cases from 18% to 12%.

Re-opening Limitations: Under current law, re-openings can occur within 4 years of an Order or settlement. HB 2 seeks to change this interpretation to permit re-openings only within 4 years of the original Settlement or Award thereby limiting re-opening rights for injured workers by decreasing the allowable time frame within which to file a re-opening claim.  Workers whose disabilities increase from a work related injury more than 4 years after the original award would no longer be entitled to be compensated for the increased disability.

Cumulative Trauma: KRS 342.185 has been consistently interpreted by the Supreme Court to require notice of a claim for cumulative trauma and the filing of a claim within 2 years of the last injurious exposure.  Basically, open ended while the repetitive duties continue.  HB 2 would impose a 5-year limit for notice and filing of claim.

Average Weekly Wage: Currently, 1 in 8 injured workers in Kentucky receive weekly temporary total disability benefits below their actual wages due to the statutory cap based upon the State’s average weekly wage.    For those injured workers earning higher wages, HB 2 increases Temporary Total Disability and Permanent Total Disability benefits to 110% of the State’s average weekly wage and increases the rates for Permanent Partial Disability Benefits from 75% to 82.5% of the State’s average weekly wage. 

Such increases do not meaningfully increase disability benefits for the higher wage earner.  The increase to 110% would increase their weekly TTD benefits from $848.41 to $933.25.  However, those earning greater than $1,400 would still have their benefits capped at $933.25.

For permanent partial disability benefits, the calculation increases from 75% to 82.5% of the State’s average weekly wage and would only slightly increase weekly PPD benefits for maximum wage earners between 8% to 10% less attorney fees. 

Burden of Proof Liability Limits:  HB 2 provides that if there is any voluntarily induced non-prescribed substance, the injured worker must prove such was not the proximate cause of the injury.  Under current law insurers must prove that the use of non-prescribed substances were the proximate cause of the injury, thus shifting the burden of proof to injured workers. 

Attorney Fees: HB 2 increases the maximum cap on attorney fees from $12,000 to $18,000.  The increase in attorney fees, while necessary and desirable, would decrease awards received by injured workers lacking a commensurate increase in benefits.  Further, this increase does nothing to address the lack of attorney fees for medical disputes.

Occupational Disease Evaluations: In 2012 the Kentucky Supreme Court found the procedures for evaluating Black Lung cases to be unconstitutional. HB 2 seeks to reincarnate the unconstitutional “B-Readers” system, and to make the statute constitutional, by having all occupational disease claims decided under the former Black Lung evaluation procedures and laws.

Disability Benefits: HB 2 would terminate all disability benefits for injured workers at age 67 or if a senior worker is injured after age 67 they will be eligible for only an additional two years of disability benefits.  The Supreme Court has held that the cap on disability benefits for senior injured workers unconstitutional. 

Treatment Guidelines and Pharmaceutical Formulary: HB 2 requires the Commissioner of Workers Claims to promulgate treatment guidelines and pharmaceutical formulary.  Treatment guidelines take away decisions for medical treatment from injured workers and their treating physicians resulting in a cookie-cutter approach to medical care for injured workers.