Gardens Glen Farm v. Balderas, No. 2014-CA-000191-WC (Ky.App. 2014): In a reopening of a claim, a negotiated settlement might not reflect the claimant’s actual disability and any change in occupational disability is the difference between the claimant’s actual occupational disability on the date of settlement and his or her occupational disability at the time of reopening.
In Balderas, a Court of Appeals opinion to be published, the Court addressed the reopening of a negotiated settlement which compromised the return to work factor. In finding an increase in occupational disability, the ALJ calculated the increase based on the actual occupational disability the claimant had on the date of settlement (in this case more than what was negotiated) and the disability at the time of reopening. The Court, as did the Workers’ Compensation Board, relied on Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999) and Newburg v. Davis, 841 S.W.2d 164 (Ky. 1992) for the proposition that “The figure for occupational disability which is contained in a settlement agreement represents a compromise and might or might not equal the workers’ actual occupational disability at the time…” Whittaker at 482.