Kentucky Statutes 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
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(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 denied 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 original 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) years 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 parties 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 pneumoconiosis 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 reasonably 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 remaining 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 been 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 awarded 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.
Effective: July 14, 2018
History: Amended 2018 Ky. Acts ch. 40, sec. 4, effective July 14, 2018. — Amended
2000 Ky. Acts ch. 514, sec. 7, effective July 14, 2000. — Amended 1996 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 6, effective December 12, 1996. — Amended 1994 Ky. Acts ch. 181, Part 6, sec. 27, effective April 4, 1994. — Amended 1987 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 16, effective October 26, 1987. — Amended 1980 Ky. Acts ch. 104, sec. 4, effective July 15, 1980. — Amended 1972 Ky. Acts ch. 78, sec. 24. — Amended 1960 Ky. Acts ch. 147, sec. 12. — Recodified 1942 Ky. Acts ch. 208, sec.
1, effective October 1, 1942, from Ky. Stat. sec. 4902.
Legislative Research Commission Note (7/14/2018). This statute was amended in
Section 4 of 2018 Ky. Acts ch. 40. Subsection (2) of Section 20 of that Act reads, “Sections 2, 4, and 5 and subsection (7) of Section 13 of this Act are remedial and shall apply to all claims irrespective of the date of injury or last exposure, provided that, as applied to any fully and finally adjudicated claim, the amount of indemnity ordered or awarded shall not be reduced and the duration of medical benefits shall not be limited in any way.”
(a) Fraud;
Terms Used In Kentucky Statutes 342.125
- Compensation: means all payments made under the provisions of this chapter representing the sum of income benefits and medical and related benefits. See Kentucky Statutes 342.0011
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fraud: Intentional deception resulting in injury to another.
- Income benefits: means payments made under the provisions of this chapter to the disabled worker or his dependents in case of death, excluding medical and related benefits. See Kentucky Statutes 342.0011
- Injury: when used generally, unless the context indicates otherwise, shall include an occupational disease and damage to a prosthetic appliance, but shall not include a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury. See Kentucky Statutes 342.0011
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Permanent partial disability: means the condition of an employee who, due to an injury, has a permanent disability rating but retains the ability to work. See Kentucky Statutes 342.0011
- Permanent total disability: means the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury, except that total disability shall be irrebuttably presumed to exist for an injury that results in:
1. See Kentucky Statutes 342.0011 - Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
- Statute: A law passed by a legislature.
- Temporary total disability: means the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment. See Kentucky Statutes 342.0011
- Work: means providing services to another in return for remuneration on a regular and sustained basis in a competitive economy. See Kentucky Statutes 342.0011
- Year: means calendar year. See Kentucky Statutes 446.010
(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 denied 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 original 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) years 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 parties 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 pneumoconiosis 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 reasonably 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 remaining 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 been 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 awarded 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.
Effective: July 14, 2018
History: Amended 2018 Ky. Acts ch. 40, sec. 4, effective July 14, 2018. — Amended
2000 Ky. Acts ch. 514, sec. 7, effective July 14, 2000. — Amended 1996 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 6, effective December 12, 1996. — Amended 1994 Ky. Acts ch. 181, Part 6, sec. 27, effective April 4, 1994. — Amended 1987 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 16, effective October 26, 1987. — Amended 1980 Ky. Acts ch. 104, sec. 4, effective July 15, 1980. — Amended 1972 Ky. Acts ch. 78, sec. 24. — Amended 1960 Ky. Acts ch. 147, sec. 12. — Recodified 1942 Ky. Acts ch. 208, sec.
1, effective October 1, 1942, from Ky. Stat. sec. 4902.
Legislative Research Commission Note (7/14/2018). This statute was amended in
Section 4 of 2018 Ky. Acts ch. 40. Subsection (2) of Section 20 of that Act reads, “Sections 2, 4, and 5 and subsection (7) of Section 13 of this Act are remedial and shall apply to all claims irrespective of the date of injury or last exposure, provided that, as applied to any fully and finally adjudicated claim, the amount of indemnity ordered or awarded shall not be reduced and the duration of medical benefits shall not be limited in any way.”