NCCI Court Case Update for Kentucky

On September 28, 2023, the Supreme Court of Kentucky, in Tennco Energy, Inc. v. Lane, addressed when a workers compensation (WC) claimant should notify the employer of an impending coal workers pneumoconiosis (CWP) claim, where the claimant was previously diagnosed with the illness and concluded a prior CWP claim against a different prior employer.

In 2005, a coal miner settled a WC claim against his then employer for CWP. In 2019, the miner filed a new WC claim for CWP against a new employer where he was last exposed to coal dust. An administrative law judge (ALJ), relying on Kentucky statute KRS 342.316—which requires employees to give employers notice of claim as soon as practicable after employees experience a distinct manifestation of an occupational disease or a diagnosis is communicated—dismissed the claim, determining that the miner failed to give the new employer timely notice because the diagnosis received prior to the 2005 settlement with the former employer rendered the 2019 notice untimely.

In its review of the case, the supreme court noted that to address the issue of when a WC claimant must notify the employer of an impending CWP claim—where the claimant was previously diagnosed and obtained WC benefits for CWP—the court must first address whether a claimant may even seek subsequent CWP benefits against a new employer. The court found that subsequent CWP claims against new employers are not prohibited by law, however, a claimant who seeks subsequent CWP benefits against a new employer must demonstrate a harmful change in condition that is attributable to the time spent with the new employer.

Regarding the question of timely notice to the employer, the court held that once the claimant becomes aware of such harmful change in condition, the claimant has a statutory obligation to notify the employer. Such notice, the court found, must be given “as soon as practicable,” which translates into giving notice only after having knowledge of some subsequent harmful change.

With this decision, the supreme court remanded the case to the ALJ for a determination of whether the miner was, or should have been, reasonably apprised he had sustained a harmful change in his CWP and, ultimately, whether notice provided to the last employer was given as soon as practicable afterward.

For more information on other cases monitored by NCCI’s Legal Division, visit previous Court Case Updates and Court Case Insights under the Legal section of INSIGHTS on ncci.com.

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