Kentucky Administrative Regulations
Title 803 - LABOR CABINET
Chapter 25 - Department of Workers' Claims
Section 803 KAR 25:150 - Workers' compensation alternative dispute resolution systems
Universal Citation: 803 KY Admin Regs Service 25:150
Current through Register Vol. 51, No. 6, December 1, 2024
RELATES TO: KRS Chapter 342
NECESSITY, FUNCTION, AND CONFORMITY: KRS 342.277 requires the Executive Director of the Office of Workers' Claims to promulgate administrative regulations putting forth the mechanism and criteria by which the Office of Workers' Claims may recognize as valid and binding a collective bargaining agreement between an employer and a recognized or certified exclusive bargaining representative. KRS 342.260 requires the Executive Director of the Office of Workers' Claims to promulgate administrative regulations as are necessary to carry on the work of the Office of Workers' Claims and to implement the provisions of KRS Chapter 342. The function of this administrative regulation is to establish a mechanism by which the executive director may recognize as valid and binding a collective bargaining agreement between an employer and a recognized or certified exclusive bargaining representative.
Section 1. Definitions.
(1) "ADR" means alternative dispute
resolution.
(2) "Collective
bargaining agreement" means an agreement between an employer and a recognized
or certified exclusive bargaining representative concerning workers'
compensation claims and the resolution of workers' compensation
disputes.
(3) "Certification" means
the order issued by the executive director advising the employer and the
recognized or certified exclusive bargaining representative that a program for
alternative dispute resolution of disagreements as to entitlement to workers'
compensation benefits for employees of the employer has been
approved.
(4) "Recognized or
certified exclusive bargaining representative" means the entity recognized or
certified by the employees of an employer as the employees' representative for
purposes of resolution of disputes relating to the employees' entitlement to
workers' compensation benefits.
(5)
"ADR plan administrator" means the person or entity designated by an employer
and the recognized exclusive bargaining representative as the day-to-day
administrator of the program for resolutions of disputes as to entitlement to
workers' compensation benefits and the amount, manner of payment, and duration
of benefits for work-related injuries and occupational diseases.
Section 2. Application; Plan Requirements.
(1) Any employer and the
recognized or certified exclusive bargaining representative, through their
designated ADR plan administrator may apply for certification of a plan which
supplements, modifies, or replaces the provisions of KRS Chapter 342 that
relate to the resolution of disputes. The format for the application is set
forth in Appendix A. The application and appended materials shall demonstrate
that:
(a) The employer and the recognized or
certified exclusive bargaining representative have entered into a binding
collective bargaining agreement adopting the ADR plan for a period of no less
than two (2) years and appointing the ADR plan administrator for no less than a
period of one (1) year;
(b)
Contractual agreements have been reached with the employer's workers'
compensation carrier, group self-insurance fund, and any excess carriers
relating to the ADR plan.
(c)
Procedures have been established by which claims for benefits by employees will
be lodged, administered and decided while affording procedural due
process.
(d) The plan has
designated forms upon which claims for benefits shall be made. Such forms shall
comport substantially with the Procedure for Adjustments of Claim forms
prescribed by
803 KAR
25:010.
(e) The system and means by which the
employer's obligation to furnish medical services under
KRS
342.020 and vocational rehabilitation and
retraining benefits under
KRS
342.732 and
342.710
shall be fulfilled and providers selected.
(f) The method by which mediators or
arbitrators are to be selected.
(g)
The decision of a mediator or arbitrator upon a referred matter shall have the
same force and effect as that of an administrative law judge under KRS Chapter
342.
(h) Income benefits for
disability will be no less than those provided by KRS Chapter 342.
(2) The executive director shall
review the application within thirty (30) days and by written order served upon
the ADR plan administrator notify that the plan had been certified, denied, or
needs to be amended, affording the applicant thirty (30) days in which to make
suggested amendments. Any order denying an application shall specifically set
forth the basis of the denial.
(3)
Any applicant aggrieved by the order of the executive director denying an
application may within fifteen (15) days of the date of that order file with
the executive director a request for hearing setting forth a concise statement
of the reasons why the executive director's decision should be changed. The
executive director shall in no less than thirty (30) days schedule and hold a
hearing pertaining to the matter. Within ten (10) days of the conclusion of the
hearing, the executive director shall issue a final order adopting, modifying
or reversing the prior order relative to the application. An applicant
aggrieved by that order may appeal to the Franklin Circuit Court within thirty
(30) days of the entry of the order.
Section 3. Employees' Claims for Workers' Compensation Benefits.
(1) Claims for benefits
shall be filed with the ADR plan administrator within those periods of
limitation prescribed by KRS Chapter 342. Within ten (10) days of the filing of
a claim, the plan administrator shall serve a copy of the claim application
upon the executive director, who shall maintain records of all ADR claims and
resolutions.
(2) Settlements of
claims presented to the plan administrator shall be evidenced by a settlement
agreement substantially comporting with Form 110-0, 110-I, or 110-R as adopted
at
803 KAR
25:010. All such settlements shall be filed with the
ADR plan administrator, who within ten (10) days shall forward a copy to the
executive director for recording.
(3) Upon assignment of claims, unless
settled, mediators and arbitrators shall render final orders containing
essential findings of fact, rulings of law and referring to other matters as
pertinent to the questions at issue. The ADR plan administrator shall maintain
a record of the proceedings.
Section 4. Workers' Compensation Funds Participation.
(1) Participation by the special fund in any
claim pending before the ADR plan administrator, a mediator, or arbitrator
shall be sought as soon as possible after the existence of grounds for special
fund liability is known. Written request for participation should be addressed
to: Director of Division of the Workers' Compensation Funds, ATTN: ADR Clerk,
Department of Labor, 1047 U.S. 127 South, Frankfort, Kentucky 40601. The
request shall:
(a) Specify the factual basis
of alleged special fund liability;
(b) Be accompanied by a copy of all written
materials pertinent to the claim held by the requesting party and any material
discoverable under KRS Chapter 342; and
(c) Be accompanied by a current medical
waiver and consent form executed by the claimant.
(2) Within fifteen (15) days following
receipt of a request for participation in a pending ADR claim, the director of
the special fund shall notify the parties, in writing, of whether it elects to
join as a party in the ADR proceedings. A failure of the director of the
special fund to respond to a request for participation shall be deemed a
negative election.
(3) If the
director of the special fund declines to participate in the ADR proceedings,
the claimant, the employer, and the employer's insurance carrier shall retain
the right to proceed against the special fund in the manner prescribed by KRS
Chapter 342. Any claim against the special fund shall be filed with the Office
of Workers' Claims within thirty (30) days after an award or settlement through
ADR becomes final.
Section 5. Appeals.
(1) A party to an ADR
proceeding may appeal a final order to the Workers' Compensation Board in the
same manner and in the same time frame as prescribed for an appeal from the
decision of an administrative law judge. A copy of the notice of appeal shall
be served by the appealing party on the plan administrator, who shall within
twenty (20) days file with the executive director a copy of the record of the
proceedings before the mediator or arbitrator.
(2) The final order of the mediator or
arbitrator shall be affirmed upon review unless the Workers' Compensation Board
determines:
(a) The mediator or arbitrator
exceeded the authority vested by applicable law;
(b) The final order is incomplete, ambiguous
or so contradictory as to make implementation impracticable;
(c) The mediator or arbitrator was patently
biased or partial;
(d) The mediator
or arbitrator refused to admit reliable material or probative, but not
redundant, evidence, which if accepted would tend to change the outcome of the
proceeding; or
(e) The final order
of the mediator or arbitrator was procured by fraud.
(3) No issue or point of error shall be
raised before the board which was known or should have been known below, but
was not raised before the arbitrator.
Section 6. Reporting Requirements. Annually, each ADR plan administrator shall submit a report to the executive director containing the following information:
(1) The
number of employees within the ADR program;
(2) The number of occurrences of work-related
injuries or diseases;
(3) The
breakdown within the ADR program of injuries and diseases treated;
(4) The total amount of disability benefits
paid within the ADR program;
(5)
The total medical treatment cost paid within the ADR program;
(6) The number of claims filed within the ADR
program; and
(7) The disposition of
all claims.
APPENDIX A
APPLICATION FOR CERTIFICATION OF AN ALTERNATIVE DISPUTE RESOLUTION PROGRAM APPLICATION FOR CERTIFICATION
(1) Employer's name, address, and telephone
number.
(2) Recognized or certified
exclusive bargaining representative's name, address, and telephone
number.
(3) ADR plan administrator's
name and address.
(4)
(a) Contract adopting ADR plan and appointing
the ADR plan administrator.
(b)
Contract between employer and employer's workers' compensation carrier, group
self-insurance fund, and any applicable excess carriers.
(c) Description of procedures by which claims
for benefits are to be lodged, administered and decided.
(d) Forms substantially comporting with
803 KAR
25:010.
(e)
Description of procedure by which the employer is to furnish medical services,
vocational rehabilitation, and retraining benefits, and method of selecting
providers.
(f) Description of the
method by which mediators or arbitrators are to be selected.
(g) A statement demonstrating that the
decision of a mediator or arbitrator shall have the same force and effect as
that of an administrative law judge.
(h) A statement that income benefits for
disability will be no less than those provided by KRS Chapter 342.
_____________________________________
Employer Signature
Date: __________
Subscribed and Sworn to before me by
___________________ , on this the
_______ date of ___________ , 19 _____ .
_____________________
Notary Public
My Commission expires ___________________ , 19____.
___________________________________
Exclusive Bargaining Representative Signature
Date: __________
Subscribed and Sworn to before me by
___________________ , on this the
_______ date of ___________ , 19 _____ .
_____________________
Notary Public
My Commission expires ___________________ , 19____.
____________________________________
ADR PLAN ADMINISTRATOR SIGNATURE
Date: __________
Subscribed and Sworn to before me by ___________________ , on this the
_______ date of ___________ , 19 _____ .
_____________________
Notary Public
My Commission expires ___________________ , 19____.
STATUTORY AUTHORITY: KRS 342.260, 342.277
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