AN ACT relating to workers' compensation for first responders.

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AN ACT relating to workers' compensation for first responders. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
Section 1. KRS 342.0011 is amended to read as follows: 3
As used in this chapter, unless the context otherwise requires: 4
(1) (a) "Injury" means any work-related traumatic event or series of traumatic events, 5
including cumulative trauma, arising out of and in the course of employment 6
which is the proximate cause producing a harmful change in the human 7
organism evidenced by objective medical findings. "Injury" does not include 8
the effects of the natural aging process, and does not include any 9
communicable disease unless the risk of contracting the disease is increased 10
by the nature of the employment. "Injury" when used generally, unless the 11
context indicates otherwise, shall include an occupational disease and damage 12
to a prosthetic appliance, but shal l not include a psychological, psychiatric, or 13
stress-related change in the human organism, unless it is a direct result of a 14
physical injury; and 15
(b) Notwithstanding paragraph (a) of this subsection, "injury" for a: 16
1. Police officer, firefighter, or emergency medical services personnel as 17
defined in KRS 61.315; 18
2. Front-line staff as defined in KRS 194A.065; or 19
3. Kentucky National Guard member on state active duty as defined in 20
KRS 38.010; 21
may include a psychological, psychiatric, or stress -related change in the 22
human organism that is not a direct result of a physical injury, as specified 23
in Section 2 of this Act; 24
(2) "Occupational disease" means a disease arising out of and in the course of the 25
employment; 26
(3) An occu pational disease as defined in this chapter shall be deemed to arise out of 27
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the employment if there is apparent to the rational mind, upon consideration of all 1
the circumstances, a causal connection between the conditions under which the 2
work is performed and the occupational disease, and which can be seen to have 3
followed as a natural incident to the work as a result of the exposure occasioned by 4
the nature of the employment and which can be fairly traced to the employment as 5
the proximate cause. The occup ational disease shall be incidental to the character of 6
the business and not independent of the relationship of employer and employee. An 7
occupational disease need not have been foreseen or expected but, after its 8
contraction, it must appear to be related to a risk connected with the employment 9
and to have flowed from that source as a rational consequence; 10
(4) "Injurious exposure" shall mean that exposure to occupational hazard which would, 11
independently of any other cause whatsoever, produce or cause the d isease for 12
which the claim is made; 13
(5) "Death" means death resulting from an injury or occupational disease; 14
(6) "Carrier" means any insurer, or legal representative thereof, authorized to insure the 15
liability of employers under this chapter and includes a self-insurer; 16
(7) "Self-insurer" is an employer who has been authorized under the provisions of this 17
chapter to carry his or her own liability on his or her employees covered by this 18
chapter; 19
(8) "Department" means the Department of Workers' Claims in th e Education and 20
Labor Cabinet; 21
(9) "Commissioner" means the commissioner of the Department of Workers' Claims 22
under the direction and supervision of the secretary of the Education and Labor 23
Cabinet; 24
(10) "Board" means the Workers' Compensation Board; 25
(11) (a) "Temporary total disability" means the condition of an employee who has not 26
reached maximum medical improvement from an injury and has not reached a 27
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level of improvement that would permit a return to employment.[;] 1
(b) "Permanent partial disability" me ans the condition of an employee who, due 2
to an injury, has a permanent disability rating but retains the ability to work .[; 3
and] 4
(c) "Permanent total disability" means the condition of an employee who, due to 5
an injury, has a permanent disability rating a nd has a complete and permanent 6
inability to perform any type of work as a result of an injury, except that total 7
disability shall be irrebuttably presumed to exist for an injury that results in: 8
1. Total and permanent loss of sight in both eyes; 9
2. Loss of both feet at or above the ankle; 10
3. Loss of both hands at or above the wrist; 11
4. Loss of one (1) foot at or above the ankle and the loss of one (1) hand at 12
or above the wrist; 13
5. Permanent and complete paralysis of both arms, both legs, or one (1) 14
arm and one (1) leg; 15
6. Incurable insanity or imbecility; or 16
7. Total loss of hearing; 17
(12) "Income benefits" means payments made under the provisions of this chapter to the 18
disabled worker or his or her dependents in case of death, excluding medical and 19
related benefits; 20
(13) "Medical and related benefits" means payments made for medical, hospital, burial, 21
and other services as provided in this chapter, other than income benefits; 22
(14) "Compensation" means all payments made under the provisions of this chapter 23
representing the sum of income benefits and medical and related benefits; 24
(15) "Medical services" means medical, surgical, dental, hospital, nursing, and medical 25
rehabilitation services, medicines, and fittings for artificial or prosthetic devices; 26
(16) "Person" means any individual, partnership, limited partnership, limited liabilit y 27
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company, firm, association, trust, joint venture, corporation, or legal representative 1
thereof; 2
(17) "Wages" means, in addition to money payments for services rendered, the 3
reasonable value of board, rent, housing, lodging, fuel, or similar advantages 4
received from the employer, and gratuities received in the course of employment 5
from persons other than the employer as evidenced by the employee's federal and 6
state tax returns; 7
(18) "Agriculture" means the operation of farm premises, including the planting , 8
cultivation, producing, growing, harvesting, and preparation for market of 9
agricultural or horticultural commodities thereon, the raising of livestock for food 10
products and for racing purposes, and poultry thereon, and any work performed as 11
an incident t o or in conjunction with the farm operations, including the sale of 12
produce at on -site markets and the processing of produce for sale at on-site markets. 13
It shall not include the commercial processing, packing, drying, storing, or canning 14
of such commoditi es for market, or making cheese or butter or other dairy products 15
for market; 16
(19) "Beneficiary" means any person who is entitled to income benefits or medical and 17
related benefits under this chapter; 18
(20) "United States," when used in a geographic sense, means the several states, the 19
District of Columbia, the Commonwealth of Puerto Rico, the Canal Zone, and the 20
territories of the United States; 21
(21) "Alien" means a person who is not a citizen, a national, or a resident of the United 22
States or Canada. Any p erson not a citizen or national of the United States who 23
relinquishes or is about to relinquish his or her residence in the United States shall 24
be regarded as an alien; 25
(22) "Insurance carrier" means every insurance carrier or insurance company authorized 26
to do business in the Commonwealth writing workers' compensation insurance 27
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coverage and includes the Kentucky Employers Mutual Insurance Authority and 1
every self-insured group operating under the provisions of this chapter; 2
(23) (a) "Severance or processin g of coal" means all activities performed in the 3
Commonwealth at underground, auger, and surface mining sites; all activities 4
performed at tipple or processing plants that clean, break, size, or treat coal; 5
and all activities performed at coal loading faci lities for trucks, railroads, and 6
barges. Severance or processing of coal shall not include acts performed by a 7
final consumer if the acts are performed at the site of final consumption. 8
(b) "Engaged in severance or processing of coal" shall include all in dividuals, 9
partnerships, limited partnerships, limited liability companies, corporations, 10
joint ventures, associations, or any other business entity in the Commonwealth 11
which has employees on its payroll who perform any of the acts stated in 12
paragraph (a) of this subsection, regardless of whether the acts are performed 13
as owner of the coal or on a contract or fee basis for the actual owner of the 14
coal. A business entity engaged in the severance or processing of coal, 15
including but not limited to administrat ive or selling functions, shall be 16
considered wholly engaged in the severance or processing of coal for the 17
purpose of this chapter. However, a business entity which is engaged in a 18
separate business activity not related to coal, for which a separate premi um 19
charge is not made, shall be deemed to be engaged in the severance or 20
processing of coal only to the extent that the number of employees engaged in 21
the severance or processing of coal bears to the total number of employees. 22
Any employee who is involved in the business of severing or processing of 23
coal and business activities not related to coal shall be prorated based on the 24
time involved in severance or processing of coal bears to his or her total time; 25
(24) "Premium" for every self-insured group means any and all assessments levied on its 26
members by such group or contributed to it by the members thereof. For special 27
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fund assessment purposes, "premium" also includes any and all membership dues, 1
fees, or other payments by members of the group to associati ons or other entities 2
used for underwriting, claims handling, loss control, premium audit, actuarial, or 3
other services associated with the maintenance or operation of the self -insurance 4
group; 5
(25) (a) "Premiums received" for policies effective on or afte r January 1, 1994, for 6
insurance companies means direct written premiums as reported in the annual 7
statement to the Department of Insurance by insurance companies, except that 8
"premiums received" includes premiums charged off or deferred, and, on 9
insurance policies or other evidence of coverage with provisions for 10
deductibles, the calculated cost for coverage, including experience 11
modification and premium surcharge or discount, prior to any reduction for 12
deductibles. The rates, factors, and methods used to calculate the cost for 13
coverage under this paragraph for insurance policies or other evidence of 14
coverage with provisions for deductibles shall be the same rates, factors, and 15
methods normally used by the insurance company in Kentucky to calculate 16
the cost for coverage for insurance policies or other evidence of coverage 17
without provisions for deductibles, except that, for insurance policies or other 18
evidence of coverage with provisions for deductibles effective on or after 19
January 1, 1995, the calculated c ost for coverage shall not include any 20
schedule rating modification, debits, or credits. For policies with provisions 21
for deductibles with effective dates on or after January 1, 1995, assessments 22
shall be imposed on premiums received as calculated by the d eductible 23
program adjustment. The cost for coverage calculated under this paragraph by 24
insurance companies that issue only deductible insurance policies in Kentucky 25
shall be actuarially adequate to cover the entire liability of the employer for 26
compensation under this chapter, including all expenses and allowances 27
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normally used to calculate the cost for coverage. For policies with provisions 1
for deductibles with effective dates of May 6, 1993, through December 31, 2
1993, for which the insurance company did n ot report premiums and remit 3
special fund assessments based on the calculated cost for coverage prior to the 4
reduction for deductibles, "premiums received" includes the initial premium 5
plus any reimbursements invoiced for losses, expenses, and fees charged 6
under the deductibles. The special fund assessment rates in effect for 7
reimbursements invoiced for losses, expenses, or fees charged under the 8
deductibles shall be those percentages in effect on the effective date of the 9
insurance policy. For policies cov ering covered employees having a co -10
employment relationship with a professional employer organization and a 11
client as defined in KRS Chapter 336, "premiums received" means premiums 12
calculated using the experience modification factor of each client as defin ed 13
in KRS Chapter 336 for each covered employee for that portion of the payroll 14
pertaining to the covered employee. 15
(b) "Direct written premium" for insurance companies means the gross premium 16
written less return premiums and premiums on policies not taken but 17
including policy and membership fees. 18
(c) "Premium," for policies effective on or after January 1, 1994, for insurance 19
companies means all consideration, whether designated as premium or 20
otherwise, for workers' compensation insurance paid to an insura nce company 21
or its representative, including, on insurance policies with provisions for 22
deductibles, the calculated cost for coverage, including experience 23
modification and premium surcharge or discount, prior to any reduction for 24
deductibles. The rates, f actors, and methods used to calculate the cost for 25
coverage under this paragraph for insurance policies or other evidence of 26
coverage with provisions for deductibles shall be the same rates, factors, and 27
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methods normally used by the insurance company in Ke ntucky to calculate 1
the cost for coverage for insurance policies or other evidence of coverage 2
without provisions for deductibles, except that, for insurance policies or other 3
evidence of coverage with provisions for deductibles effective on or after 4
January 1, 1995, the calculated cost for coverage shall not include any 5
schedule rating modifications, debits, or credits. For policies with provisions 6
for deductibles with effective dates on or after January 1, 1995, assessments 7
shall be imposed as calculated by the deductible program adjustment. The cost 8
for coverage calculated under this paragraph by insurance companies that 9
issue only deductible insurance policies in Kentucky shall be actuarially 10
adequate to cover the entire liability of the employer for com pensation under 11
this chapter, including all expenses and allowances normally used to calculate 12
the cost for coverage. For policies with provisions for deductibles with 13
effective dates of May 6, 1993, through December 31, 1993, for which the 14
insurance compa ny did not report premiums and remit special fund 15
assessments based on the calculated cost for coverage prior to the reduction 16
for deductibles, "premium" includes the initial consideration plus any 17
reimbursements invoiced for losses, expenses, or fees char ged under the 18
deductibles. 19
(d) "Return premiums" for insurance companies means amounts returned to 20
insureds due to endorsements, retrospective adjustments, cancellations, 21
dividends, or errors. 22
(e) "Deductible program adjustment" means calculating premium a nd premiums 23
received on a gross basis without regard to the following: 24
1. Schedule rating modifications, debits, or credits; 25
2. Deductible credits; or 26
3. Modifications to the cost of coverage from inception through and 27
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including any audit that are based on negotiated retrospective rating 1
arrangements, including but not limited to large risk alternative rating 2
options; 3
(26) "Insurance policy" for an insurance company or self -insured group means the term 4
of insurance coverage commencing from the date coverage is extended, whether a 5
new policy or a renewal, through its expiration, not to exceed the anniversary date 6
of the renewal for the following year; 7
(27) "Self-insurance year" for a self -insured group means the annual period of 8
certification of the group created pursuant to KRS 342.350(4) and 304.50-010; 9
(28) "Premium" for each employer carrying his or her own risk pursuant to KRS 10
342.340(1) shall be the projected value of the employer's workers' compensation 11
claims for the next calendar year as calculated by the commissioner using 12
generally-accepted actuarial methods as follows: 13
(a) The base period shall be the earliest three (3) calendar years of the five (5) 14
calendar years immediately preceding the calendar year for which the 15
calculation is made. The commis sioner shall identify each claim of the 16
employer which has an injury date or date of last injurious exposure to the 17
cause of an occupational disease during each one (1) of the three (3) calendar 18
years to be used as the base, and shall assign a value to eac h claim. The value 19
shall be the total of the indemnity benefits paid to date and projected to be 20
paid, adjusted to current benefit levels, plus the medical benefits paid to date 21
and projected to be paid for the life of the claim, plus the cost of medical a nd 22
vocational rehabilitation paid to date and projected to be paid. Adjustment to 23
current benefit levels shall be done by multiplying the weekly indemnity 24
benefit for each claim by the number obtained by dividing the statewide 25
average weekly wage which wil l be in effect for the year for which the 26
premium is being calculated by the statewide average weekly wage in effect 27
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during the year in which the injury or date of the last exposure occurred. The 1
total value of the claims using the adjusted weekly benefit shall then be 2
calculated by the commissioner. Values for claims in which awards have been 3
made or settlements reached because of findings of permanent partial or 4
permanent total disability shall be calculated using the mortality and interest 5
discount assum ptions used in the latest available statistical plan of the 6
advisory rating organization defined in Subtitle 13 of KRS Chapter 304. The 7
sum of all calculated values shall be computed for all claims in the base 8
period; 9
(b) The commissioner shall obtain the annual payroll for each of the three (3) 10
years in the base period for each employer carrying his or her own risk from 11
records of the department and from the records of the Department of 12
Workforce Development, Education and Labor Cabinet. The commissioner 13
shall multiply each of the three (3) years of payroll by the number obtained by 14
dividing the statewide average weekly wage which will be in effect for the 15
year in which the premium is being calculated by the statewide average 16
weekly wage in effect in each of the years of the base period; 17
(c) The commissioner shall divide the total of the adjusted claim values for the 18
three (3) year base period by the total adjusted payroll for the same three (3) 19
year period. The value so calculated shall be multiplied by 1.2 5 and shall then 20
be multiplied by the employer's most recent annualized payroll, calculated 21
using records of the department and the Department of Workforce 22
Development data which shall be made available for this purpose on a 23
quarterly basis as reported, to obtain the premium for the next calendar year 24
for assessment purposes under KRS 342.122; 25
(d) For November 1, 1987, through December 31, 1988, premium for each 26
employer carrying its own risk shall be an amount calculated by the board 27
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pursuant to the provis ions contained in this subsection and such premium 1
shall be provided to each employer carrying its own risk and to the funding 2
commission on or before January 1, 1988. Thereafter, the calculations set 3
forth in this subsection shall be performed annually, a t the time each employer 4
applies or renews its application for certification to carry its own risk for the 5
next twelve (12) month period and submits payroll and other data in support 6
of the application. The employer and the funding commission shall be notified 7
at the time of the certification or recertification of the premium calculated by 8
the commissioner, which shall form the employer's basis for assessments 9
pursuant to KRS 342.122 for the calendar year beginning on January 1 10
following the date of certification or recertification; 11
(e) If an employer having fewer than five (5) years of doing business in this state 12
applies to carry its own risk and is so certified, its premium for the purposes 13
of KRS 342.122 shall be based on the lesser number of years of experience as 14
may be available including the two (2) most recent years if necessary to create 15
a three (3) year base period. If the employer has less than two (2) years of 16
operation in this state available for the premium calculation, then its premium 17
shall be the greater of the value obta ined by the calculation called for in this 18
subsection or the amount of security required by the commissioner pursuant to 19
KRS 342.340(1); 20
(f) If an employer is certified to carry its own risk after having previously insured 21
the risk, its premium shall be ca lculated using values obtained from claims 22
incurred while insured for as many of the years of the base period as may be 23
necessary to create a full three (3) year base. After the employer is certified to 24
carry its own risk and has paid all amounts due for a ssessments upon 25
premiums paid while insured, the employer shall be assessed only upon the 26
premium calculated under this subsection; 27
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(g) "Premium" for each employer defined in KRS 342.630(2) shall be calculated 1
as set forth in this subsection; and 2
(h) Notwithstanding any other provision of this subsection, the premium of any 3
employer authorized to carry its own risk for purposes of assessments due 4
under this chapter shall be no less than thirty cents ($0.30) per one hundred 5
dollars ($100) of the employer's m ost recent annualized payroll for employees 6
covered by this chapter; 7
(29) "SIC code" as used in this chapter means the Standard Industrial Classification 8
Code contained in the latest edition of the Standard Industrial Classification Manual 9
published by the Federal Office of Management and Budget; 10
(30) "Investment interest" means any pecuniary or beneficial interest in a provider of 11
medical services or treatment under this chapter, other than a provider in which that 12
pecuniary or investment interest is obtai ned on terms equally available to the public 13
through trading on a registered national securities exchange, such as the New York 14
Stock Exchange or the American Stock Exchange, or on the National Association 15
of Securities Dealers Automated Quotation System; 16
(31) "Managed health care system" means a health care system that employs gatekeeper 17
providers, performs utilization review, and does medical bill audits; 18
(32) "Physician" means physicians and surgeons, audiologists holding a doctorate in 19
audiology, psycho logists, optometrists, dentists, podiatrists, and osteopathic and 20
chiropractic practitioners acting within the scope of the license or other credentials 21
required by his or her specialty of practice in the United States jurisdiction in which 22
he or she is authorized to practice; 23
(33) "Objective medical findings" means information gained through direct observation 24
and testing of the patient applying objective or standardized methods; 25
(34) "Work" means providing services to another in return for remuneration on a regular 26
and sustained basis in a competitive economy; 27
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(35) "Permanent impairment rating" means percentage of whole body impairment 1
caused by the injury or occupational disease as determined by the "Guides to the 2
Evaluation of Permanent Impairment"; 3
(36) "Permanent disability rating" means the permanent impairment rating selected by 4
an administrative law judge times the factor set forth in the table that appears at 5
KRS 342.730(1)(b); and 6
(37) "Guides to the Evaluation of Permanent Impairment" means, excep t as provided in 7
KRS 342.262: 8
(a) The fifth edition published by the American Medical Association; and 9
(b) For psychological impairments, Chapter 12 of the second edition published by 10
the American Medical Association. 11
SECTION 2. A NEW SECTION OF KRS CHAPTER 342 IS CREATED TO 12
READ AS FOLLOWS: 13
(1) As used in this section: 14
(a) "Emergency medical services personnel" has the same meaning as in KRS 15
61.315; 16
(b) "Firefighter" has the same meaning as in KRS 61.315; 17
(c) "Front-line staff" has the same meaning as in KRS 194A.065; 18
(d) "Kentucky National Guard member" means a member on state active duty 19
as defined in KRS 38.010; 20
(e) "Police officer" has the same meaning as in KRS 61.315; and 21
(f) "Qualified mental health professional" h as the same meaning as in KRS 22
202A.011. 23
(2) If a police officer, firefighter, emergency medical services personnel, front -line 24
staff member, or a Kentucky National Guard member suffers a psychological, 25
psychiatric, or stress -related change in the human org anism that is not a direct 26
result of a physical injury but is the result of a work -related event or cumulative 27
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work-related stress, then that psychological, psychiatric, or stress -related change 1
shall be considered an injury arising out of and in the cours e of employment if it 2
is demonstrated by the preponderance of the evidence that: 3
(a) The work -related event or cumulative work -related stress was extraordinary 4
and unusual in comparison to pressures and tensions experienced by the 5
average employee across all occupations; and 6
(b) The work -related event or cumulative work -related stress, and not some 7
other event, was the proximate cause of the psychological, psychiatric, or 8
stress-related change in the human organism. 9
(3) A psychological, psychiatric, or stre ss-related change in the human organism 10
shall not be considered an injury arising out of and in the course of employment 11
if it results from any disciplinary action, work evaluation, job transfer, layoff, 12
demotion, termination, or similar action taken in good faith by the employer. 13
(4) (a) If a police officer, firefighter, emergency medical services personnel, front -14
line staff member, or a Kentucky National Guard member is diagnosed with 15
post-traumatic stress disorder by a qualified mental health professiona l 16
within three (3) years of the last active date of employment as a police 17
officer, firefighter, emergency medical services personnel, front -line staff 18
member, or Kentucky National Guard member, then there shall be a 19
rebuttable presumption that the post -traumatic stress disorder is an injury 20
covered by this chapter, and the employer with whom the employee was last 21
injuriously exposed to the harmful stress shall be exclusively liable for 22
benefits. 23
(b) A presumption of a work -related injury under paragraph (a) of this 24
subsection may be overcome by the preponderance of the evidence that the 25
post-traumatic stress disorder was caused by nonservice -connected risk 26
factors or nonservice-connected exposure. 27