August 8, 2016
In a new interpretation of Kentucky's workers' compensation statutes regarding occupational disease claims, a panel of the Court of Appeals issued an opinion on Friday holding that the Commissioner's inability to secure an independent, university medical evaluation of an injured worker barred the injured worker's claim. Tema Isenmann, Inc. v. Miller, 2015-CA-1544. The Court noted that Kentucky's workers' compensation statutes "require a university evaluation in all occupational disease claims," and the "responsibility for appointing a university evaluator lies with the Commissioner." The evaluator must be affiliated with either the University of Kentucky or the University of Louisville. In a "situation not contemplated by the statutes," the Commissioner tried to secure a university evaluator to assess Miller, but was unable to do so. The Court remanded the case to the ALJ, who must require the Commissioner "to procure a university medical evaluation." The Opinion holds that if the Commissioner again is unable to do so, the Commissioner must conduct an independent search for an evaluator affiliated with some university other than the University of Kentucky or the University of Louisville, even though the statutes do no explicitly allow for such a procedure.