Workers’ Comp in the Bluegrass State

By Judge Robert V. Durham, Cookeville

Robert DurhamBack when the world was normal, I traveled to Kentucky to observe how its court conducted workers’ compensation hearings. While anyone who practices workers’ comp in Tennessee would have little difficulty getting up to speed on Kentucky law, they’d encounter several procedural differences that I found very interesting.

To initiate a claim in Kentucky, employees must first provide notice. They are then free to choose their own doctor, which the employer must accept if the claim is compensable—one of the biggest differences between Kentucky and Tennessee law. After receiving notice, the employer then has 45 days to accept or deny the claim. If denied, the employee must file an “Application for Adjustment of the Claim,” which triggers the court process.

Apparently very few self-represented parties file applications, which is in sharp contrast to Tennessee. I find this especially interesting, since Kentucky only allows 20% attorney’s fees on the first $25,000, 10% on the next $10,000, and 5% on any award over that, with a total cap of $12,500.

agency-logoOn receipt of the application, the court assigns the claim to one of 16 judges, based on where the employee lives. However, the judges don’t have their own jurisdictions, or “hearing sites,” as Kentucky calls them. All the judges travel to multiple hearing sites throughout the year, and claims are assigned based on which judge will be at the designated hearing site when the claim becomes ripe for adjudication.

After assignment, the parties then have varying deadlines to provide relevant documents to the court, although continuances are routinely granted on request.

When the case is ready, the court conducts a “Benefit Review Conference;” however, it is very different from our BRCs under the “old law.” In Kentucky, judges conduct BRCs, not mediators. In fact, Kentucky doesn’t have a separate mediation department like Mediation and Ombudsman Services of Tennessee, and they have no formal mediation process. The BRC brings the parties to an in-person meeting with the judge at the designated hearing site a few weeks before the hearing. There, the judge narrows the issues, goes over exhibits and witness lists, and attempts to resolve issues through mediation. If issues remain, the case is set for a hearing.

The hearing itself is an informal process. Everyone, including the judge, sits around a conference table. The judge doesn’t wear a robe, nor did I hear anyone refer to her as “Your Honor.” The hearings are quite short, with most only lasting 30 to 45 minutes. They take testimony but don’t give opening or closing statements. The Rules of Evidence are followed during testimony, but I got the impression that they were more lenient regarding the admission of evidence than in Tennessee. Briefs are provided only after the hearing is conducted. As with us, the Kentucky court doesn’t give verdicts from the bench but later issues a written decision. Interestingly, the Kentucky court does provide its own court reporters.

If a claim is settled, Kentucky law requires judicial approval. However, the parties don’t appear for an in-person hearing. Instead, they mail the settlement documents, and only the chief judge may approve them.

By now, you’ve likely realized that court procedures differ significantly in Tennessee and Kentucky. While Kentucky has several intriguing features, I have to say that overall I prefer our method to theirs. Of course, I’m sure the Kentucky judges would say the same about their process. If you want more information about Kentucky’s system, here’s a good place to start.

unnamedFinally, I want to say that the judges in Kentucky bent over backward to help me complete this project, and they are as passionate about doing things right as we are. I especially want to thank the Honorable Jane Williams, who graciously allowed me to observe her hearings and then pick her brain afterward. I truly enjoyed seeing things from a new perspective. I hope to return the favor someday.


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