Kentucky’s administrative law judges are finding more and more of their opinions are being reversed. Both the Kentucky Workers’ Compensation Board and the state Court of Appeals are routinely sending cases back to ALJs for further fact-finding. In the past two months, seven of 21 comp cases (a ratio of 1 in 3) have been reversed, at least in part. Two recent decisions illustrate this trend.
In Vowels v. St. Elizabeth Medical Center, http://www.comped.net/opinions_recentdisp.php?ID=5565 the Workers Comp Board ruled the ALJ had applied the wrong legal standard in deciding whether an award of benefits should be reduced because of a pre-existing condition. St. Elizabeth argued that the ALJ should have decided whether a pre-existing active impairment existed at the time of injury. Instead, the ALJ ruled that Vowels’ award should not be reduced because she had no pre-existing active occupational disability. The Workers’ Comp board agreed with St. Elizabeth and sent the case back for further fact-finding.
In Park Terrace Health Care v. Thompson, http://www.comped.net/opinions_recentdisp.php?ID=5576 the ALJ had recited copious evidence in deciding that a work-related injury (falling ceiling tiles) had never occurred, nor caused any injury. However, the ALJ also cited to some hearsay testimony of a co-worker. Both the Workers’ Comp Board and the Court of Appeals decided the case should be sent back to the ALJ for another decision with the hearsay testimony excluded.
Such scrutiny by the courts usually results in months of delays in the payment of benefits. While scrutiny of workers’ comp decisions is needed, the costs of such litigation and delays to claimants are areas that should bear examination.
Stephen Burke is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.
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