Allene Hall v. Hospitality Resources, Inc.

RENDERED : NOVEMBER 26, 2008
TO BE PUBLISHED

of
LZ
uyrtmr (~Vurf
2007-SC-000153-WC
C--
ALLENE HALL APPELLANT

ON APPEAL FROM COURT OF APPEALS
V. 2005-CA-001887-WC
WORKERS' COMPENSATION BOARD NO . 95-WC-35309

HOSPITALITY RESOURCES, INC ., ET AL APPELLEES

OPINION OF THE COURT BY JUSTICE SCOTT

REVERSING

This is an appeal from a Court of Appeals' opinion affirming the

decision of the Workers' Compensation Board, both of which are based

on the underlying premise that the KRS 342 .125(3) four year statute of

limitation for motions to reopen in is to be calculated from the date of the

original award only; this notwithstanding, that the Appellant/ Claimant,

Mrs . Hall (Hall), at the time the limitation allegedly ran, was (1) receiving

temporary total disability (TTD) benefits under an order granted

subsequent to the original award and (2) had not reached maximum

medical improvement (MMI), a necessary prerequisite for a successful

motion to reopen. For reasons that such construction of KRS 342 .125(3)

ignores its full statutory language, we disagree.
 KRS 342 .125(3) states the four year limitation shall be calculated

from "the date of the original award or order granting or denying benefits ."

(emphasis added) . Thus, where an order is subsequently entered

granting or denying benefits, as was the case here, the four year statute

of limitation is to be calculated from the later date, rather than the

earlier.

Thus, for reasons as are more fully explained hereinafter, we

reverse the decision of the Court of Appeals and remand this matter to

the Workers' Compensation Board for such further proceedings as are

necessary and appropriate. )

l. Facts

Appellant, Hall, suffered a work related injury to her lower back

and cervical spine on April 9, 1995, and filed a timely claim for Workers'

Compensation benefits. As part of her treatment, a lumbar laminectomy

was performed on May 1, 1996. On July 22, 1997, the claim was

resolved by settlement, with both parties agreeing to benefits based upon

a sixty percent (60%) permanent partial disability.

Hall, thereafter, remained under the care of Dr. Weinsweig, and on

December 7, 2000, Dr. Weinsweig performed an additional surgical

procedure, fusing two of her cervical disc levels. This subsequent

1 Given our decision on the timing of the four year statute of limitation in
KRS 342 .125(3), all other issues raised by the parties are moot.
 surgery necessitated Hall's January 10, 2001, motion to reinstate TTD

benefits, which was sustained on February 14, 2001, by the Chief

Administrative Law Judge (CALJ) who ordered, "that the plaintiffs TTD

benefits will be reinstated beginning on December 7, 2000, and

continuing until the plaintiff has reached maximum medical recovery."

As required, periodic reports regarding her recovery were

submitted to the CAW. Hall, however, continued to struggle to recover,

continued to be compensated for TTD and continued to await maximum

medical improvement (MMI) for a period of more than seventeen (17)

months . Significantly, the four year statute of limitation for reopening, if

calculated from the "date of the original award," expired on July 22,

2001, six (6) months following the entry of the order awarding TTD benefits

and almost eleven (11) months before Hall reached MMI. Hall did not

reach MMI until just prior to the order terminating the benefits on June

7, 2002 .

After gathering medical opinions necessary to show both a "change

of medical condition" and "occupational disability," Hall filed a motion to

reopen on November 7, 2003, seeking an increase in her disability award .

The motion was filed within two years and nine months of the February

14, 2001, order granting benefits, but more than four years from the

"original award" of July 22, 1997.

Appellee then responded that the motion to reopen was barred by
the KRS 342 .125(3) four year statute of limitation . The CALJ agreed,

denying the motion to reopen by order of December 30, 2003 . Appellant,

thereafter, filed a petition for reconsideration, adding additional

arguments to the effect that the claim had been "automatically" reopened

by the CALJ's order granting TTD benefits on February 14, 2001 . The

motion for reconsideration was then granted, finding the reopening date

to have been February 14, 2001, and the matter proceeded to proof and

decision in front of an Administrative Law Judge (ALJ) . 2

Following proof, the ALJ issued an "Opinion and Award" finding

Appellant had shown (1) the necessary "change of medical condition" and

"occupational disability ;" and, (2) that she is now permanently totally

disabled . As to the question of limitation, the ALJ held:

The Chief Administrative Law Judge has already determined
that the motion to re-open was filed as of February 14, 2001 .
This was within four years of the original settlement
approved on July 22, 1997 . Thus, it is within the time
allowed by KRS 342 .125 . The settlement was approved on
July 22, 1997. Mrs . Hall underwent additional surgery on
December 7, 2000. On January 11, 2001, [she] filed a
motion to reopen styled Motion to Reinstate TTD Benefits.
The employer responded to this motion as a Motion to Re-
open . After the period of TTD, the plaintiff requested
additional income benefits. The Chief Administrative Law
Judge appropriately determined that the motion to reopen
related back to the motion to reinstate TTD benefits . The

2 The text of the ALJ's order of February 20, 2004, was as follows :
It is hereby ordered that plaintiff's motion to reopen, dated
November 7, 2003, and an order entered on December 30,
2003, overruling this motion (are) found to be moot and this
claim is re-opened and proof time is to be set. The claim
was reopened on February 14, 2001 .
4
 substance of the motion clearly related to a request for such
benefits as were then ascertainable based upon a change of
condition. TTD benefits were payable well into 2002 .
Arguably, the four-year time period for reopening expired on
July 22, 2001 . To hold that the motion to reinstate TTD
benefits was not a motion to reopen, to hold that no motion
to reopen was filed until some document entitled "Motion to
Reopen" was filed, and to rule that the time period for
requesting additional income benefits expired during the
time that income benefits were being paid at the maximum
rate, all would be to place form over substance. The Chief
Administrative Law Judge appropriately determined that the
motion to reopen was timely filed .

Following a denial of Appellee's petition for reconsideration,

Appellee filed an appeal to the Workers' Compensation Board. The Board

thereafter reversed, holding that (1) the four year statute of limitation is

to be calculated from the date of the original award only; and, (2) as the

matter was not "automatically" reopened for consideration of total

disability benefits as a result of the motion for TTD benefits, the motion

to reopen was untimely . The matter was then appealed to the Court of

Appeals, which affirmed the Workers' Compensation Board . It comes to

this Court as a matter of right. Vessels v. Brown-Forman Distillers

Corp. , 793 S.W .2d 795 (Ky. 1990) . "The function of further

review in our Court is to address new or novel questions of statutory

construction, or to reconsider precedent when such appears necessary,

or to review a question of constitutional magnitude." Western Baptist

Hosp. v. Kelly, 827 S .W.2d 685, 688 (Ky. 1992) .

We now address the issue we consider central to the proper
resolution of this case, i .e ., the beginning time of the KRS 342 .125(3)

four year statute of limitation .

11 . Motions to Reopen

Although the principle of finality of judgments applies to Workers'

Compensation awards the same as court judgments, KRS 342 .125

permits an award of compensation to be reopened prospectively in some

cases due to certain post-award changes. Beale v. Faultless Hardware,

837 S .W .2d 893, 896 (Ky. 1992) . The procedural device for doing so is a

motion to reopen . Hodges v. Sager Corp . , 182 S.W.3d 497, 499 (Ky .

2005) . A motion to reopen is, in some respects, similar to a motion to re-

docket, where the grounds for re-docketing are tested prior to the matter

proceeding further . Cf. , Evans Elkhorn Coal Co. v. Ousley, 388 S.W .2d

130, 131 (Ky. 1965) and Stambau h v. Cedar Creek Minin

S .W.2d 681, 682 (Ky. 1972) . As we explained in Stambaugh :

The party who seeks to change the Workmen's
Compensation Board's decision . . . on an application to
reopen should be required to make a reasonable prima facie
preliminary showing of the existence of a substantial
possibility of the presence of one or more of the prescribed
conditions that warrant a change in the Board's decision
before his adversary is put to the additional expense of
relitigation . The Board should formulate reasonable
standards for the form and content of such a preliminary
showing.3

3 Pursuant to such direction, the Office of Workers' Compensation has
promulgated regulations with regard to motions to reopen . Presently, the
regulation pertaining to a motion to reopen can be found in 803 KAR 25 :010,
Section 4(6)(a) . This regulation provides that a motion to reopen should be
accompanied by as many of the following items as may be applicable :

6
Id. at 682 . Stambaugh , "left [it] to the fact-finder's `reasonable discretion'

to determine whether the showing in a particular case was sufficient to

warrant the taking of evidence ." Hodges , 182 S.W.3d at 500 (quoting

Stambaugh , 488 S.W .2d at 682) . However, where "the premise for a

motion to reopen is a post-award change of disability [or medical

condition], the change must exist when the motion is filed and the motion

must be supported by the prima facie showing that KRS 342 .125(1)(d)

specifies ." Id. (emphasis added) .

Although, Hod es, dealt with "the type of prima facie showing that

KRS 342 .125(1)(d) requires in order to grant a motion to reopen," it very

1) A current medical release Form 106 executed by the plaintiff;

2) An affidavit evidencing the grounds to support reopening;

3) A current medical report showing a change in disability established by
objective medical findings;

4) A copy of the Opinion and Award, Settlement, Voluntary Agreed Order
or Agreed Resolution sought to be re-opened;

5) An affidavit certifying that a previous motion to re-open has not been
made by the moving party, or if one (1) has previously been made, the
date on which the previous motion was filed;

6) A designation of evidence from the original record specifically
identifying the relevant items of proof which are to be considered as part
of the record during re-opening ; [and]

7) A certification of service that the motion was served on all parties as
well as counsel for the parties.

(emphasis added) .
 pointedly established when the prima facie showing must be made . Id. at

498. In Hod es, the claimant filed her motion to reopen on December

12, 2000 . On January 18, 2001, the ALJ placed the matter in abeyance .

On January 19, 2001, the employer filed its response to the motion . On

January 26, 2001, the ALJ amended the previous order, granted the

motion to reopen, and placed the reopened claim in abeyance . In the

subsequent proceeding on the merits, the employer continued to assert

that the claimant's motion failed the necessary prima facie showing. In

upholding the employer's argument, this Court stated :

The record before the ALJ on January 26, 2001, included
medical evidence that addressed the claimant's condition in
May, 1999, when Dr. Davies began treating her. That
evidence did not permit her impairment in 1987 to be
compared with her impairment in December, 2000, when she
filed her motion to reopen. Under the circumstances, it was
an abuse of discretion to grant the motion .

Id. (emphasis added) .

A claimant's burden at reopening is to prove that she sustained a

post-settlement worsening of impairment from the injury; to prove that

the change is permanent; and to prove that it caused her to be totally

and permanently disabled. Colwell v. Dresser Instrument Div., 217

S .W.3d 213, 217, 218 (Ky. 2006) . "Income benefits are awarded based

upon the amount of occupational disability which exists at the time the

worker reaches maximum medical improvement following an injury,"

Brooks v. University of Louisville Hosp . , 33 S .W.3d 526, 530 (Ky. 2000),
 and an "[i]mpairment is considered to be permanent When it has reached

maximum medical improvement (MMI), meaning it is well stabilized and

unlikely to change substantially in the next year with or without medical

treatment."' Colwell, 217 S.W.3d at 217 . Thus, given the fact that Hall

was still receiving TTD benefits and had not reached MMI by the time the

four year limitation allegedly ran, she could not have made the prima

facie showing as is required upon the filing of a motion to reopen prior to

its alleged expiration date .

The unsupported suggestion by the Court of Appeals that Hall

could have avoided the four year limitation of KRS 342 .125(3) by pre-

filing and then abating the motion to reopen until she reached MMI (even if

MMI was post-expiration of four years from the original award date) is

simply not correct under the existing statutory scheme . See Kendrick v.

Toyota, 145 S .W.3d 422, 425 (Ky . App . 2004) . In Kendrick, the Court of

Appeals stated :

Addressing the claimant's argument that the abeyance
provisions contained in KRS 342.265(5) and the statute of
limitations contained in KRS 342 .185(1) should be applied
so as to extend the statute of limitations on reopening, the
court determined those statutes were directed solely to the
"application for resolution of a claim" and the filing of an
"application for adjustment of claim" respectively. The court
stated that based upon the plain language of the statutes,
they were applicable to initial claims and not motions to
reopen .

Id. (citations omitted) (emphasis added) . There is simply no statutory
 authority for an ALJ to place a motion to reopen in abeyance once the

motion is challenged by an opposing party. Moreover, the suggestion by

the dissent, that since Appellant had asked "for all proper relief" in her

motion for TTD benefits her KRS 342 .125(3) statute of limitations within

which to file a motion to reopen was extended from July 22, 2001 to

June 7, 2002 - is belied by the dissent's ultimate premise - that KRS

342 .125(3) cannot be extended by subsequent orders granting benefits.

This notwithstanding, that MMI is a prerequisite for the evaluation of

permanent impairment and "a permanent impairment rating is [a]

prerequisite to a finding of permanent total disability." Colwell , 217

S .W.2d at 217 . An "[i]mpairment is considered to be permanent `when it

has reached maximum medical improvement (MMI), meaning it is well

stabilized and unlikely to change." Id . "Once an impairment has

reached MMI a permanent impairment rating may be performed ." Linda

Cocchiarella Sv Gunnar B.J. Anderson, Guides to the Evaluation of

Permanent Impairment 19 (5th ed. 2000) .

Thus, as a practical matter it takes many months to put together

experts and expert reports making the appropriate medical/legal

comparison between the prior permanent partial disability and a

permanent total disability, as well as the other documentation required

by 803 KAR 25 :10 § 4(6)(a) . And this can only begin after the attainment

of MMI. Here, MMI occurred eleven (11) months after the alleged

10
expiration of the limitations.

Generally, the standard for reopening that existed as of the date of

the injury controls the rights and obligations of the parties . Woodland

Hill Min., Inc. v. McCoy, 105 S .W.3d 446, 448 (Ky. 2003) ; KRS

342 .125(6) . However, the four year statute of limitation added to KRS

342 .125 after Hall's injury is an exception to the rule. Meade v. Reedy

Coal Co. , 13 S.W.3d 619, 622 (Ky . 2000) ("the four-year limitation

contained in KRS 342 .125(3) govern[s] the reopening of claims in which

an award is entered on or after December 12, 1996.") . Thus, the

evidentiary standards for reopening are controlled by the statute on the

date of injury (1995), but, the limitation period is governed by the latter

amendment. Id.

In 1995, when Appellant was injured, KRS 342 .125(1) provided an

award or order could be reopened at any time upon the requisite showing.

As aforenoted however, KRS 342 .125(3) was amended effective

December 12, 1996, to'provide, in pertinent part, that:

(1) Upon motion by any party or upon an . . . administrative
law judge's own motion, an . . . administrative law judge may
reopen and review any award or order on any of the following
grounds :

(d) Change of disability as shown by objective medical
evidence of worsening or improvement of impairment due to
a condition caused by the injury since the date of the award
or order.
 (3) Except for reopening solely for determination of the
compensability of medical expenses, fraud, or conforming
the award as set forth in KRS 342 .730(1)(c)2 ., or for reducing
a permanent total disability award when an employee
returns to work, no claim shall be reopened more than four
(4) years following the date of the original award or order
granting or denying benefits, or within two (2) years of such
award or order, and no party may file a motion to reopen
within two (2) years of any previous motion to reopen by the
same party. 4

(8) The time limitation prescribed in this section shall apply
to all claims irrespective of when they were incurred, or
when the award was entered, or the settlement approved .
However, claims decided prior the effective date of this act,
may be reopened within four (4) years of the award or order
or within four (4) years of the effective date of this act,
whichever is later, provided that the exceptions to reopening
established in subsections (1) and (3) of this section shall
apply to these claims as well .

KRS 342 .125 (Dec. 12, 1996) . (emphasis added) .

In this instance, the ALJ found the settlement as originally

approved to be consistent with an award pursuant to KRS 342 .730(1)(d)

and, thus, held Appellant to a standard of proof showing a "change in

medical condition," KRS 342 .730(1)(d), as well as the additional standard

4 KRS 342 .125(3) was again amended on July 14, 2000, dropping
the two (2) year reopening bar from the date of the "original award or
order granting or denying benefits," and dropping the bar on reopening
from two (2) years from a previous reopening to one (1) year, while adding
the right to file a motion for TTD at any time during the period of an
award.

12
 of showing a "change in occupational disability," as was then required by

KRS 342 .125(1) (1995) . Reviewing the evidence, the ALJ found that

Appellant proved both standards, finding:

Allene Hall, as a result of the injury of April 9, 1995, is now
totally occupationally disabled .

There has been a change in medical condition and a change
of occupational disability as a result of the injury of April 9,
1995.

111 . The KRS 342 .1250) Statute of Limitation

In two unpublished opinions, Cook v. Unicorn Min ., No. 2003-SC-

0616-WC, 2004 WL 1908114, (August 26, 2004) and Cruse v. Aristech

Chemical Co . , No . 2004-SC-0291-WC, 2005 WL 119771, (January 20,

2005), 5 this Court rendered opinions supporting the opinions of the

Workers' Compensation Board and Court of Appeals on facts similar to

the facts at hand . We did not, however, closely scrutinize the distinction

between the words "original award or order granting or denying benefits ."

See KRS 347 .125(3) .

In Cook, we overlooked the statutory language "award or order"

referred to in KRS 342.125(8), noting only that the claimant's 1998 order

denying benefits, following his 1995 award, was not the "award or

settlement referred to in the statute ." Cook, No . 2003-SC-0616-WC, 2004

5 Pursuant to CR 76.28(4)(c) unpublished Kentucky Appellate decisions
rendered after January 1, 2003, may be cited for consideration by the Court if
there is no published opinion that would adequately address the issue before
the Court.

13
WL 1908114, at *2 (emphasis added) . Plainly, the pertinent statutory

language refers to an "order or award" rather than a settlement.6 In

Cruse, we recognized the correct statutory language of KRS 342.125(3),

i.e., "original award or order granting or denying benefits," but still held

that an order reducing the claimant's award on the employer's later

motion to reopen "was not the original award or order granting or

denying benefits." Cruse , No. 2004-SC-0291-WC, 2005 WL 119771, at

*2 . As was often the practice concerning "unpublished opinions," we did

not elaborate on our reasons for giving control of the subject phrase to

the word "original." Johnson v . Gans Furniture Industries, Inc . , 114

S .W. 3d 850, 858 (Ky. 2003), the facts of which again, did not involve a

subsequent "order granting or denying benefits" as did Cruse and Cook,

made the same mistake in its' dicta, relying only on the statutory

language "original award," while overlooking the full statutory language

"original award or order granting or denying benefits ." KRS 342 .125(3) .

Wray v. Allied Systems , No. 2004-SC-002122-WC, 2005 WL

1058862, (Ky. App . 2005), followed with the same result as Cruse. Here

again, a subsequent order reducing the Appellant's award on the

employer's motion to reopen was not recognized as an "order granting or

6 The word "settlement" is used only in the first sentence of KRS
342.125(8), which is the sentence necessary to establish the "remedial intent" of
the legislature in order that the statute applies retroactively . See KRS
446 .080(3) .

14
 denying benefits." And here, in this case, the Court of Appeals relied on

Kendrick , 145 S .W.3d at 425. Kendrick , however, dealt only with the

question of whether the voluntary payment of post-award TTD benefits by

the employer without a motion and order granting such benefits, extended

the four year statute of limitations under KRS 342.125(3) . The Court,

holding the filing of the motion to reopen untimely, held the "[v]ouunaary

payment of TTD benefits post-award is not an exception contained within

the statute ." Id. A point with which we do not disagree, since there was

no order requiring payment of income benefits.

It is now apparent that these previous interpretations of KRS

342 .125(3), by the Court of Appeals and this Court, have put claimants

such as Hall in the untenable position of attempting to avoid their

holdings by (1) filing premature motions to reopen, even though the

claimant has not reached MMI and thus cannot realistically determine and

apprise the tribunal of the required degree of change,? or (2) being forced

to forego promised benefits by allowing the statute of limitation to expire

while actively receiving medical treatment designed to achieve the MMI

necessary for such a motion, where MMI (and thus the existence of

objective medical, disability and occupational evidence) occurs post-

limitation period . Surely workers' compensation cases for injured

7 This entails a rare occurrence where a claimant can get an experienced
compensation attorney to take on, or assist claimant, in this arduous task (given
the risk under CR 11) without any prospects of recovering compensation for his
work, unless he is successful on the motion to reopen .
15
claimants should be decided on "their merits rather than on the basis of

gamesmanship ." Kroger Co . v. Jones, 125 S.W.3d 241, 246 (Ky . 2004) .

Thus, we are compelled by the patent absurdity of this result to question

our earlier analysis of the legislature's intent regarding the statutory

language at issue .

"The seminal duty of a court in construing a statute is to effectuate

the intent of the legislature ." Commonwealth v. Plowman, 86 S .W.3d 47,

49 (Ky. 2002) (citing Commonwe alth v. Harrison, 14 S .W .3d 541 (Ky.

2000)) . uA fundamental canon of statutory construction is that, unless

otherwise defined, words will be interpreted as taking their ordinary,

contemporary, common meaning." United States v. Plavcak, 411 F.3d

655, 660 (6th Cir. 2005) (citing Perrin v. United States, 444 U.S. 37, 42,

100 S . Ct. 311, 314, 62 L.Ed.2d 199 (1979)) .Thus, we are "to ascertain

the intention of the legislature from words used in enacting statutes

rather than surmising what may have been intended but was not

expressed ." Stopher v. Conliffe , 170 S .W.3d 307, 309 (Ky. 2005),

overruled on other grounds by Hodge v. Coleman , 244 S.W.3d 102 (Ky.

2008) .

Thus, if a statute is clear and unambiguous and expresses the

legislature's intent, the statute must be applied as written. Griffin v . City

of Bowling Green , 458 S.W .2d 456, 457 (Ky. 1970) . And absent an

ambiguity, "there is no need to resort to the rules of statutory

16
construction in interpreting it." Stewart v. Estate of Cooper, 102 S .W.3d

913, 915 (Ky. 2003) . However, where an ambiguity does exist, an

"absurdity which may follow one construction or another may properly

be considered ." Fa eette County v. Hill, 304, Ky. 621, 625, 201 S.W.2d

886, 889 (1947) . Statutes, of course, "must be read as a whole and in

context with other parts of the law." Lewis v. Jackson Energy Co-Op

Corp . , 189 S .W.3d 87, 92 (Ky. 2005) .

"It is a basic principle of statutory construction that terms joined

by the disjunctive "or" must have different meanings because otherwise

the statute or provision would be redundant." United States v. Hill, 79

F.3d 1477, 1482, 1483 (6th Cir. 1996) ; see also Garcia v . United States,

469 U .S . 70, 73, 105 S .Ct. 479, 481, 83 L.Ed.2d 472 (1984) ("Canons of

construction indicate that terms connected in the disjunctive in this

manner be given separate meanings .") . Although one could argue the

words "or" and "and" can be easily interchanged, "we point out that to

make such interchange it must be obvious that the intent of the

legislature would be thwarted if the change were not made." Boron Oil

Co. v. Cathedral Foundation, Inc. , 434 S .W .2d 640, 641 (Ky. 1968) (citin

Duncan v. Wiseman Baking Co. , 357 S .W .2d 694 (Ky. 1962)) . Here, if

the limitation was intended to mean four years from the "original

decision," it is fair to assume the legislature would not have added the

additional language, "or order granting or denying benefits." KRS

17
 342 .125(3) . One surely would not contend that an order denying benefits

is the same as an original award.

That the reference to the "original award or order granting or

denying benefits" was intended to encompass orders granting benefits

other than the "original award," is established by several additional uses

in the same statute . For example, KRS 342 .125(1) allows an ALJ to

"reopen and review any award or order" on stated grounds . (emphasis

added) . It is uncontestable that the reference to "order" in KRS

342 .125(1) encompasses an order different than the original award,

otherwise there could be no reopenings of awards changed subsequent to

the original award, increasing or decreasing benefits, as all must concede

is the practice . For example, KRS 342 .125(1)(d) specifically allows a

"reopening and review" upon a "[c}hange of disability as shown by

objective medical evidence of worsening or improvement of impairment

due to a condition caused by the injury since the date of the award or

order." (emphasis added) . If the word "order" was interpreted to refer

only to the original award, a "review and reopening" of a subsequently

increased or decreased award or order could simply not occur. And, KRS

342 .125(4) acknowledges that the "[r]eopening shall not affect the

previous order or award as to any sums already paid thereunder."

(emphasis added) . Meaning simply that the new award or order will

operate prospective only for the remaining term of the award.

18
 Given our further analysis, the conclusion that an "order granting

or denying benefits" was tended to encompass an order granting benefits

different than an original award or settlement is compelling . Thus, the

reference in KRS 342 .125(3) to the "the original award or order granting

or denying benefits," must necessarily refer not only to the original

award, but to any subsequent order granting or denying benefits. Any

contrary interpretation leads to absurd results, as well as a violation of

the clear spirit of the Kentucky Workers' Compensation Act. Plummer v.

Sharondale Coal Corp . , 834 S.W .2d 708, 711 (Ky. App. 1992) ("We refuse

to afford an interpretation to the statute that would create irrational

distinctions yielding absurd results that would serve to undermine the

purpose of the Workers` Compensation Act.") . "We have often said that

statutes will not be given [such a] reading where to do so would lead to

an absurd or unreasonable conclusion ." Wesley v. Board of Ed. of

Nicholas County, 403 S .W.2d 28, 30 (Ky. 1966); see also Commonwealth

of Ky ., Dept. of Highways v . Wilkins, 320 S .W.2d 125, 126 (Ky. 1959) .

The Appellant's motion, therefore, was clearly filed within the four

year period of the statute of limitations contained in KRS 342 .125(3), as

the motion to reopen filed on November 7, 2003, was within four years

from the February 14, 2001, order granting benefits .$ An order denying a

8 The June 7, 2002 order "discontinuing benefits" is not an order denying
benefits, as it merely completed the "benefit scheme" envisioned by the order
granting benefits of February 14, 2001 .

19
motion to reopen under the prima facie principles of Hodges and

Stambaugh, on the other hand, would not constitute an order granting or

denying benefits, as a denial of a motion to reopen for failure to make a

prima facie showing does not deal with benefits, but rather whether or

not there are grounds to reopen and take proof akin to a motion to re-

docket. Cf. , Hodges, 182 S .W.3d at 500 ; see also Stambaugh, 488

S.W.2d at 681 .

In contrast, it has been suggested that if KRS 342 .125(3) is

interpreted to mean that a subsequent order granting or denying TTD

benefits would renew the four year period allowed for reopening, then the

four year period would effectually be nullified by the filing of successive

frivolous motions ad infinitum. We do not succumb to this argument .

Nor do we agree that a medical fee dispute encompasses benefits, as

benefits relate only to "income" benefits . Cf. , KRS 342 .730.

In the case of motions to reopen to increase or decrease monetary

benefits filed within the limitation period set out in KRS 342 .125(3), it is

unrealistic to even suggest that one could file motions to reopen every

four years for the purpose of preventing the four year period of limitation

from ever ending, as the motion to reopen must make a prima facie

showing of sufficient grounds for an award under the standard of Hod es

and StambauRh .

A second obvious obstacle is obtaining legal counsel to file, or

20
 assist, in -such a motion as there are no incentives for claimant's

attorneys to file frivolous motions to reopen. A meritorious motion to

reopen is challenging enough, and pursuant to KRS 342 .320, no fee can

be charged unless an attorney wins additional benefits, which fee is

limited to the formula set out therein, and must be approved by an AI~J.9

Payments from clients are simply unacceptable under the Kentucky's

Workers' Compensation Act. Nor can we conceive that compensation

carriers would be so wasteful of their funds . Thus, such an argument is

simply not supportable.

Aside from CR 11, KRS 342 .310 is an additional deterrent to the

filing of such frivolous motions . It allows substantial sanctions against a

party who files such motions . KRS 342 .310(1) provides that if an AhJ,

the Board, or any court before whom such proceedings are brought

under the Workers' Compensation Act, determines that such proceedings

have been brought, prosecuted or defended without reasonable grounds,

they may assess the whole cost of the proceedings, including court costs,

travel expenses, deposition costs, physician expenses, attendance fees at

depositions, attorney fees, and all other out-of-pocket expenses, against

the party who so brought, prosecuted, or defended them.

This Court addressed such an infraction in the case of Pikeville

Coal Co . /Chisholm Coal Co. v. Sullivan, 895 S .W.2d 574 (Ky. 1995),

9 "If no additional amount is recovered upon reopening, no attorney's fee
shall be awarded." KRS 342 .320(7) .
21
 wherein a claimant filed three successive claims for retraining incentive

benefits within two years against the same employer . In Pikeville Coal

Co . , the employer asserted its concern to the Court regarding employers

being subjected to economic blackmail because of the threat of

successive claims for retraining incentive benefits which could cost more

to defend than to settle. This court responded as follows:

We would point out . . . that there are ramifications for filing
frivolous claims, and costs may and should be assessed against
the offending party. KRS 342 .3 10. Certainly, merely filing the
same claim over and over again, after a decision has been reached
on the merits, and without different circumstances to warrant
reopening, KRS 342 .125, or a new claim, justify all penalties and
sanctions permitted by law.

Id , at 575 .

With regard to motions for TTD benefits, this could not be the case, as

KRS 342 .125(3) refers to a motion seeking TTD benefits during the period of the

award, which for anything less than a total disability award, cannot exceed 425

weeks (8.17 years) or 520 weeks (10 years), depending on the disability rating

for which the award was made . KRS 342 .730(1)(d) .

Thus, our analysis today convinces us that our holdings in Cruse and

Cook, as well as the Court of Appeals' decision in Wra , were incorrect as to the

timing of the four year statute of limitation under KRS 342.125(3), and thus,

Cruse, Cook and Wry are overruled to the extent they are inconsistent

herewith. We do not, however, depart from the holding in Kendrick , as KRS

342 .125(3) plainly requires an "order granting or denying benefits ."

22
 III. Conclusion

For the forgoing reasons the opinion of the Court of Appeals is hereby

reversed and this matter is remanded to the Workers' Compensation Board for

such further proceedings as are necessary and appropriate.

All sitting. Cunningham, Noble, and Schroder, JJ., concur. Minton,

C.J ., dissents by separate opinion in which Abramson and Venters, JJ ., join.
COUNSEL FOR APPELLANT:

Arnold Turner, Jr.
P.O. Box 388
Prestonsburg, KY 41653

COUNSEL FOR APPELLEE:

Scott Caldwell Wilhoit
Clark 8v Ward, PLLC
716 W. Main Street, Ste. 201
Louisville, KY 40202

COUNESL FOR SPECIAL FUND, LABOR CABINET:

Robert L. Whittaker
Department of Labor
1047 US Hwy 127 S. Suite 4
Frankfort, KY 40601

Sharon M. Cooper
Special Fund
U.S . 127 South
Frankfort, KY 40601

COUNSEL FOR HON . RICHARD M. JOINER (ALJ) :

Richard M. Joiner
Mitchell, Joiner, Hardesty 8 Lowther
145 East Center Street
Madisonville, KY 42431

COUNSEL FOR WORKERS' COMPENSATION BOARD :

Dwight Taylor Lovan
Executive Director
Office of Workers' Claims
Prevention Park
657 Chamberlin Avenue
Frankfort, KY 40601
 RENDERED : NOVEMBER 26, 2008
TO BE PUBLISHED

,vaxyrrzrrt Courf of `~rnfuxkt
2007-SC-000153-WC

ALLENE HALL APPELLANT

ON REVIEW FROM COURT OF APPEALS
V. CASE NO . 2005-CA-001887-WC
WORKERS' COMPENSATION BOARD NO . 95-WC-35309

HOSPITALITY RESOURCES, INC., ET AL. APPELLEES

DISSENTING OPINION BY CHIEF JUSTICE MINTON

The 1996 Extraordinary Session of the Kentucky General Assembly

enacted emergency legislation to effectuate immediate and sweeping changes in

Kentucky's Workers' Compensation system .' One of the principal changes

came in Kentucky Revised Statutes (KRS) 342 .125, which established a time

limit for reopening claims.2 As we have explained in earlier opinions discussing

reopening claims, final workers' compensation claims are unique because they

See 1996 Ky.Acts (1st Ex. Sess .), § 90, which declared the amendments to the
Workers' Compensation statutes emergency legislation taking effect immediately
upon approval by the governor, stated :
"The General Assembly finds and declares that workers who incur injuries covered
by KRS Chapter 342 are not assured that prescribed benefits will be promptly
delivered, mechanisms designed to establish the long-term solvency of the special
fund have failed to reduce its unfunded liability, and many of the Commonwealth's
employers are placed at a competitive disadvantage due to the cost of securing
workers' compensation insurance coverage . These circumstances threaten the
vitality of the Commonwealth's economy and the jobs and well-being of its
workforce."
Johnson v. Gans Furniture Industries, Inc. , 114 S.W.3d 850, 856 (Ky. 2003) (citing
1996 Ky.Acts . (1st Ex . Sess.), F 90).
are subject to reopening, unlike other final judgments. Our legislature in 1996

found it necessary to set time limits on theretofore unlimited rights of

reopening to avoid what the legislature saw as a looming financial catastrophe

in Kentucky :

Final workers' compensation awards are subject to the principles
of the finality of judgments and are enforceable in circuit court.
KRS 342 .305 . But, unlike other final judgments, they may be
reopened on the motion of either party under certain, specified
conditions . Among those conditions is a post-award change of
disability . KRS 342 .125(1) . The 1996 Extraordinary Session
culminated in a comprehensive revision of Chapter 342 in an
attempt to assure that benefits were promptly delivered, to remedy
the failure to reduce the unfunded liability of the Special Fund,
and to remedy the competitive disadvantage that Kentucky's
employers faced due to the high cost of securing worker's
compensation insurance, all of which are legitimate governmental
purposes . 1996 Ky. Acts (1st Ex .Sess .), § 90. In view of what the
legislature viewed as an emergency situation, the amendments
took effect immediately upon approval of the governor. Id. [citing to
1996 Ky.Acts. (1st Ex.Sess .), § 90] .3

After the 1996 amendments, all claims-with only certain specified

exceptions provided in KRS 342 .125--are subject to reopening for only four

years after "the original award or order granting or denying benefits . . . ."4

And until today, Kentucky courts have understood and upheld this four-year

time limitation and affirmed the dismissal of reopening claims not filed within

four years after the initial grant or denial of benefits (whether called an award

or order) . We did so despite arguments of unconstitutionality and harshness to

workers because we recognized the proper role of the legislative branch to

create or amend statutes for the valid purpose of averting what it viewed as a

Johnson , 114 S.W.3d at 855-56.
KRS 342 .125(3) .
financial crisis threatening the viability of the economy of the Commonwealth

and the jobs and well-being of its workforce .5

I must dissent as today the majority blithely overrules binding precedent6

and engages in tortured semantics to allow reopening within four years of any

order, not just the original order granting or denying benefits. The plain and

simple meaning of the statute mandates a four-year limitations period after the

original denial or grant of benefits, as aptly stated by then-Judge Schroder in

Wray:

The plain language of KRS 342 .125(3) only provides for a four-year
limit following the date of the original award . The statute does not
provide for a subsequent order or award to have any effect on the
four-year period . . . .

The General Assembly could have provided a statute of
limitations which imposed a four-year limitation from the date of
the original award or four years from the last order on a motion to
reopen-whichever is later, but it did not . Therefore, we are bound
by the plain-meaning of the statute and cannot expand the period
of limitations as [the claimant] asks.?

See e.g. Johnson, 114 S.W.3d at 858 ("By limiting the time for reopening to a
period of four years after the initial award unless one of the exceptions applies,
KRS 342.125(3) has the net effect of reducing the cost of workers' compensation
insurance and increasing the competitiveness of Kentucky employers, a purpose
that is legitimate . Moreover, the classifications that KRS 342.125(3) creates are
reasonable and bear a proper relation to the purpose of the amendments. We
conclude, therefore, that the provision does not violate Section 59(24) [of the
Kentucky Constitution].") .
Contrary to the majority interpretation, I find no reason to overrule our recent
precedent of Cook v. Unicorn Mining, No. 2003-SC-000616-WC, 2004 WL 1908114
(Ky. Aug. 26, 2004), or Cruse v. Aristech Chemical Co., No. 2004-SC-000291-WC,
2005 WL 119771 (Ky. January 20, 2005), nor the Court of Appeals case of Wray v.
Allied Systems, No . 2004-CA-002122-WC, 2005 WL 1058862 (Ky.App . May 6,
2005) .
Wray at ** 1- 2 (citation omitted) .
 KRS 342 .125(3) prohibits reopening a workers' compensation claim

"more than four years following the date of the original award or order granting

or denying benefits" except under specified circumstances. Those specified

circumstances include a reopening to obtain temporary total disability (TTD)

benefits within the period of an award, but they do not include a reopening to

obtain greater permanent disability benefits. Under KRS 342 .125(8), the four-

year period for reopening applies "to all claims irrespective of when they were

incurred . . . or the settlement approved ."

I do agree that the Workers' Compensation Act is social legislation

enacted to benefit injured workers . But proceedings under the Act are

adversarial. And a worker cannot sit on her rights and let a statute of

limitations expire, either with regard to an initial claim or a motion to reopen .

Allene Hall's initial motion sought both TTD and "all appropriate relief" ;

but she failed to respond to the employer's request to terminate TTD or to

assert before June 7, 2002, that her permanent disability had increased . The

predicates of her rationale for tolling the four-year period of limitations expired

on June 7, 2002, when the ALJ entered the order terminating TTD . The order

finally disposed of the TTD question, which was the only matter that had been

raised; and KRS 342 .125(3) and (8) barred reopening for the purpose of

obtaining an increase in permanent income benefits because more than four

years had passed since the order approving the initial settlement . So

permitting Hall to raise the question of increased permanent disability after

June 7, 2002, prejudiced the employer and was inconsistent with the plain
statutory language and legislative intent to establish definitive time limits on

reopening claims.

I would affirm .

.Abramson and Venters, JJ ., join this dissenting opinion.